author: Follett, J.:

text:
    THE ROBERT GERE BANK, Appellant, v. HORACE INMAN, Respondent, Impleaded with ONONDAGA IRON COMPANY.

      An answer denying, upon information and belief, the indorsement and ownership of a not» sued upon raises a material issue, and cannot be stricken out as sham — nor is it frivolous in law.

    Upon the hearing of an appeal from an order denying the plaintiff’s motion for a judgment, upon the ground that the respondent’s answer Was sham and frivolous, it appeared that the action was brought by the indorsee of a promissory note made by the respondent Horace Inman to the order of the Onondaga Iron Company, and that the complaint averred that before the note became due the payee, for value, indorsed, transferred and delivered it to the plaintiff, which became and remained the owner thereof.
    The maker, who alone defended the action, served an answer containing simply a denial of any knowledge or information sufficient to form a belief as to the truth of the allegations of the indorsement and ownership of the note set forth in the complaint.

      Held, that, as the plaintiff could not recover upon the note without proving the allegations referred to, the denial of these allegations raised a material issue and could not be stricken out as sham.
    That the rule established by the decisions bearing upon this question is, that an affirmative answer or defense which raises a material issue may be stricken out as sham; but that a general or specific denial which raises a material issue cannot be stricken out as sham when pleaded in a form permitted by the Code of Civil Procedure.

      That as a material issue was raised by the answer it was not frivolous in law, and that the Special Term correctly held that the plaintiff was not entitled to a judgment under section 587 of the Code of Civil Procedure.
    Appeal from an order of the Onondaga Special Term, denying a motion of the plaintiff to strike out the answer of the defendant Inman as sham, and for judgment thereon as frivolous, which was entered in the office of the cleric of Onondaga county on November 3, 1888.

      Martin A. Knapp, for the appellant.

      P J. Lewis, for the respondent.
   Follett, J.:

Appeal from an order of the Special Term, denying plaintiff’s motion for judgment on the grounds: (1.) That the respondent’s answer is sham. (Code Civil Pro., § 538.) (2.) That it is frivolous. (Code Civ. Pro., § 537.) The action is brought by the indorsee of a promissory note, payable to order, against the maker, Horace Inman, and the indorser, the Onondaga Iron Company. The maker alone defends. The complaint is in the ordinary form in an action by an indorsee against the maker and indorser of a promissory note, transferred for value before due. The answer contains simply a denial of any knowledge or information sufficient to form a belief as to the truth of the allegations of indorsement and ownership! set forth in the complaint. The pleadings are verified.

The affidavits upon which tills motion was heard show beyond question that the answer is sham, in fact, was interposed in bad faith, and solely for the purpose of delay. The Code of Civil Procedure provides: “ § 538. A sham answer or a sham defense may be stricken out by the court, upon motion, and upon such terms as the court deems just.” This Code does not define the terms “ sham answer” or “sham defense;” neither did the old Code. But the Court of Appeals has held that “sham answer” and “false answer” are synonymous terms. (The People v. McCumber, 18 N. Y., 315, 321; Thompson v. Erie R. R. Co., 45 id., 468, 471; Fettretch v. McKap, 47 id., 426.) Hnder this section and the above cases, it has been many times forcibly argued that when a plaintiff shows beyond doubt that an answer or defense, negative or affirmative, is clearly false, in fact, it may be stricken out; and it was so held in People McCumber (27 Barb., 632; affirmed, 18 N. Y., 315), where a “ specific denial ” was stricken from a verified answer. The power was asserted and exercised in Walker v. Hewitt (11 How., 395), and in Commonwealth Bank v. Pryor (11 Abb. [N. S.], 227). Whether general or specific denials can be stricken out as sham, under statutory provisions similar to the section above quoted, is a question upon which the courts of other States do not agree. (Bliss Co. Pl., § 422.) Before the Codes, the remedy of striking out a plea as sham or false was confined to such as set up new matter, and was not applicable to pleas which interposed the general issue as a defense. (Wood v. Sutton, 12 Wend., 235 ; Broome Co. Bank v. Lewis, 18 id., 565, 567; The Farmers and Mechanics' Bank of Rochester v. Smith, 15 How., 329, 331; Wayland v. Tysen, 45 N. Y., 281; Gra. Pr. [2d. ed.], 251.) Such was the rule, even though the plaintiff was able to establish by affidavits, beyond question, that the plea was false, in fact. Notwithstanding the fact that the old Code was designed to compel litigants to truthfully plead, it was held, following the old rule, that a “ general denial ” could not be stricken out as sham, though shown to be false in fact (Wayland v. Tysen, 45 N.Y., 281); and also that a “ specific denial ” could not be stricken out as sham, though shown to be false in fact. (Thompson v. The Erie R. R. Co., 45 N. Y., 468; The Farmers' National Bank of Fort Edward v. Leland, 50 id., 673; Claflin v. Jaroslauski, 64 Barb., 463 ; The Farmers and Mechanics' Bank of Rochester v. Smith, 15 How., 329.) Kay v. Whitaker (44 N. Y., 565), does not conflict with Wayland v. Tysen and kindred cases above cited. The defense stricken out as sham in that case was payment, which has always been held to be an affirmative defense. In Commercial Bank v. Spencer (76 N. Y., 155); Bailey v. Lane (21 How., 475), and in Kay v. Churchill (10 Abb. N. C., 83), the defenses stricken out as sham were affirmative ones, except in Kay v. Churchill, a denial of a legal conclusion was stricken out. Section 152 of the old Code and section 538 of the present Code are the same in respect to sham answers. Hnder the present Code (§ 500), as under the old Code (§ 149), denials are either general or specific. The appellant contends that no case can be cited which holds that a general or specific denial may not be stricken out as sham, if shown to be false in fact, where the denial rests solely upon a want of knowledge or information sufficient to form a belief as to the truth of the allegation so controverted. In Wayland v. Tysen, and in Thompson v. The Erie Railroad Company (supra), the denials sustained were upon knowledge; in The Farmers' National Bank of Fort Edward v. Leland (supra), the specific denial sustained was averred upon information and belief; in The Grocers' Bank v. O'Rorke (6 Hun, 18), the specific denial sustained was averred upon a want of knowledge or information sufficient to form a belief as to the truth of the allegations referred to. These cases arose under the old Code, but the rule has not been changed by the Code of Civil Procedure. (Neuberger v. Webb, 24 Hun, 347.)

A denial of knowledge or information sufficient to form a belief as to the truth of an allegation, is authorized by the Code of Civil Procedure (§§ 500, 524, 526). (Bennett v. Leeds Mfg. Co., 110 N. Y., 150 ; Snyder v. White, 6 How., 321; Sherman v. Bushnell, 7 id., 171; Roby v. Hallock, 55 id., 412 ; S. C., 5 Abb. N. C., 86 ; Leach v. Boynton, 3 Abb., 1). The denial under consideration is a specific denial, and if it raises a material issue (it being pleaded in one of the forms prescribed by the Code), it cannot be stricken out as sham.

The note was payable to the order of the Onondaga Iron Company. It is averred in the complaint that before the note became due the payee, for value, indorsed, transferred and delivered it to the plaintiff, which became and remains the owner thereof. The plaintiff could not recover upon this note without proving this allegation. (Edw. Bills [3d ed.], § 970 ; Abb. Tr. Ev., 403.) The denial of this allegation raises a material issue, and the denial cannot be stricken out as sham. The result of the eases is, that an affirmative answer or defense which raises a material issue may be stricken out as sham, but a general or specific denial which raises a material issue cannot be stricken out as sham if pleaded in a form permitted by the Code. A material issue being raised by the answer, it is not frivolous in law, and the Special Term correctly held that the plaintiff was not entitled to a judgment under section 537.

The order is affirmed, but the answer having been interposed solely for the purpose of delay, the affirmance is without costs to the respondent.

Mabtin, J., concurred; Kennedy, J., not sitting.

Order affirmed, without costs.


source: Caselaw Access Project

author: Follett, J.: Martin, J.:

license: Public Domain

text:
    CHARLES INGERSOLL, Respondent, v. THE TOWN OF LANSING, Appellant.

      When a verdict will be set aside because of the coercion of the jw'y — the duties of the presiding justice, after a jury has retired, stated—no authority, excepta Circuit Court, cam, control aju/i'y or receive its ven'dict.

    In this case the justice presiding at the trial, on submitting it in the afternoon of Friday, March 16, 1888, to the jury, informed the jury that when the court adjourned for the day it would be adjourned until the following Tuesday, March twentieth, at 10 a. m., and by the consent of the attorneys for both parties he directed the jury (unless they agreed before the court adjourned for the day) to report their verdict to the clerk, who was directed to receive and enter it. Later in the day the justice left for his home, some fifty miles distant. At 7 P. m. of that day the clerk and crier entered the court-room and the jury not reporting adjourned the court until Saturday at 9.80 A. m., at which time they returned to the court-room; the crier proclaimed that the court was open, and thereupon the jury came into court with an oral verdict for the plaintiff for seventy-five dollars. The clerk entered the verdict, discharged the jury and the crier proclaimed the court adjourned until Tuesday at 10 a. m., at which time the justice returned and the court was opened. All of these adjournments were entered in the minutes by the clerk.
    Upon an appeal from an order denying a motion made by the defendant to set aside the verdict and for a new trial, upon the ground that the jurors were required to agree or to remain together from March sixteenth to March twentieth, and that that was undue coercion:

      Held, that as the court made no provision for dicharging the jury during the absence of the presiding justice from the county unless they agreed, which compelled them to bring in a verdict or remain in confinement for four days without the aid, protection, or even the presence of the court, this direction was coercive and improper and that the trial court erred in refusing to set aside the verdict.
    That the duties of the presiding justice, after a jury has retired, in facilitating their deliberations by causing to be read to them parts of the evidence, by further instructions, by repeating or explaining instructions already given, and in determining when they shall be discharged without an agreement, and in receiving the verdict, are clearly judicial, and as important as the duties performed before the case is submitted, and the discharge of these duties can neither be abandoned nor all, nor any one of them, delegated to the clerk and crier.
    There cannot be a Circuit Court without the personal presence of a justice of the Supreme Court, and no authority, except the Circuit Court, has the power to control the jury or receive its verdict.
    Appeal from a judgment in favor of the plaintiff, entered in the office of the clerk of the county of Tompkins, on March 22, 1888, upon the verdict of a jury, rendered at the Tompkins Circuit, and also from an order denying a motion for a new trial made upon the minutes of the justice presiding at the trial, which was entered in the same office on March 22, 1888.

      Newman & McLachlan, for the appellant.

      Simeon Smith, for the respondent.
   Follett, J.:

Appeal from a judgment entered on a verdict and from an order denying a motion for a new trial made on the minutes and heard in this court on a case which contains all of the evidence.

The record shows that this case was submitted to the jury in the afternoon of Friday, March 16, 1888. The justice presiding informed the jury that when the court adjourned for the -day it would be adjourned until the following Tuesday, March twentieth, at 10 a. »l, and, by the consent of the attorneys for both parties, he directed the jury (unless they agreed before the court adjourned for the day) to report their verdict to the clerk, who was directed to receive and enter it. Later in the day, and before the jury agreed, the justice left for his home, some fifty miles distant. At seven o’clock r. m. of March sixteenth the court and crier entered the court-room, and, the jury not reporting, the crier proclaimed an adjournment of the court until Saturday, March seventeenth, at 9.30 a. m., at which time they returned to the court-room, and the crier, we assume, proclaimed that the court was open, and thereupon the jury came into court with an oral verdict for the plaintiff, assessing his damages at seventy-five dollars. The clerk entered the verdict and discharged the jury, and, thereupon, the crier proclaimed an adjournment until Tuesday, March twentieth, at 10 a. m., at which time the justice returned and the court was opened and thereafter held; all of these adjournments were entered in the minutes by the clerk. Later in the term' the attorneys for the defendant moved to set aside the verdict and for a new trial, upon the ground that the jurors were required to agree or remain together from March sixteenth to March twentieth, and that it was undue coercion. The motion was denied.

The court made no provision for discharging the jury during the absence of the presiding justice from the county unless they agreed; which compelled, them to bring in a verdict or remain in confinement for four days, without the aid, protection or even presence of the court. This direction was coercive and improper, and the trial court erred in refusing to set aside the verdict. (Green v. Telfair, 11 How. Pr., 260; Pierce v. Pierce, 38 Mich., 412.)

We do not intimate that circumstances may not exist justifying the detention of a jury for more than four days, provided there is a court ready to aid them in their deliberations or to relieve them from confinement in case it becomes apparent that further deliberation will be unavailing, or further confinement unreasonably oppressive to some or all of the jurors. The duties of the presiding justice, after a jury has retired, in facilitating their deliberations by having read parts of the evidence, by further instructions, by repeating or explaining instructions already given and in determining when they shall be discharged without an agreement and in receiving the verdict, are as clearly judicial and as important as the duties performed before the case is submitted, and the discharge of them can neither be abandoned nor all, or any of them, delegated to the clerk and crier. There cannot be a Circuit Court without the personal presence of a justice of the Supreme Court, and no authority, except the Circuit Court, has power to control the jury or receive its verdict.

The judgment and order are reversed, and a new trial is granted, with costs to abide the event.

Kennedy, J., concurred.

Martin, J.:

I concur in the result, but I am not prepared to hold that the parties to an action may not, under any circumstances, stipulate that the verdict may be received and entered by the clerk in the absence of the judge and be bound by such stipulation. I regard the decision of that question at this time as unnecessary.

Judgment and order reversed upon errors of law and a new trial granted, with costs to abide the event.


text:
    In the Matter of the Consolidation of the COURT (alias Liberty) STREET METHODIST EPISCOPAL SOCIETY OF ROME and the FIRST WESLEYAN METHODIST CHURCH OF ROME, Appellants, v. HENRY M. PERRY, GEORGE PILLPORE, GEORGE COWLES, EVAN THOMAS, LEONARD MYERS, as Trustees of the COURT (alias Liberty) STREET METHODIST EPISCOPAL CHURCH, Respondents.

      Statutes authm’izing the consolidation of existing religious cm'porations — chap. 209 of 1875, as amended by chapter 176 of 1876, construed—a corporation cannot be organized sinvplyin order to consolidate it with an existing one—a trustee or member of one religious corporation ceases to be a trustee or member thereof when he joins another — an agreement to consolidate does not take effect until it is proved and recorded.

    Upon an appeal from an order granted on October 8, 1887, vacating an order of a Special Term granted, without notice, on November 11,1885, consolidating the appellants under the corporate name of the First Wesleyan Methodist Church of Rome, N. Y., it appeared that on July 24, 1862, a religious corporation was duly incorporated pursuant to section 3 of chapter 60 of the Laws of 1813, under the name of “The Trustees of the Court Street Methodist Episcopal Church in Rome,” the corporators professing the faith of the Methodist Episcopal Church, and that on December 30, 1862, the corporation received, under the name of the “Court Street Methodist Episcopal. Society,” the grant of a church edifice and lot on Court street, and continued to own and occupy this property until October 7, 1878, when it was exchanged for a church edifice and lot on Liberty street, and thereafter the corporation of the church was known as “ The Liberty Street Methodist Episcopal Church in Rome,” but it did not appuar that the corporate name was changed pursuant to the statute.
    In April, 1885, a petition presented to the Northern Mew York Conference of the Methodist Episcopal Church, not to continue a preacher assigned by it to take charge of this church, having been refused, troubles and disagreements continually existed between the preacher and such persons until October 6, 1885, when seventy-three out of the eighty-five members of such church signed a paper, reciting their belief that the interests of the said society would be promoted by a change of its name, and pledging themselves “ to change our name to the First Wesleyan Methodist Church of Rome, and to adopt the discipline of the Wesleyan Church of America, reorganizing as such, taking our church property with us.” On the same day thirty-six members of the church met at the dwelling-house of one of the members and signed a certificate, by which they assumed to incorporate the First Wesleyan Methodist Church of Rome, which was signed by David Byam, Adin H. Butler, Charles Shepherd, Jesse M. White, four of the members and trustees of the old church; Byam and White were named in the certificate as trustees of the new church. The certificate was proved by a subscribing witness on October 20,1885; and filed in the clerk’s office on October twenty-fourth.
    ■On October sixth an agreement to consolidate these two corporations was also signed by the said Byam, Butler, White and Shepherd, four of the trustees of the old church, and by all the trustees of the new church, to convey all the property of the old church to the consolidated church; and on October twenty-third, the said Byam, Butler, Shepherd and White, still assuming to act as trustees of the old church, signed and verified a petition to the Supreme Court for the consolidation of the two corporations, the seven trustees of the new church sign, ing and verifying a like petition, and upon these petitions an order was granted consolidating the corporations, which order was thereafter vacated by the order appealed from.

      Held, that there is, in this State, no statute authorizing the organization of a religious corporation for the sole purpose of consolidating it with another, with the ultimate design of acquiring the property of such other and applying it to the maintenance of a church with a different polity and where a somewhat different faith exists.
    That the statutes authorizing' the consolidation of existing religious corporations (chap. 209 of 1875, as amended by chapter 176 of 1876, section 3) were not designed to authorize the consolidation of an existing religious corporation with one organized solely for the purpose of consolidation, but they were designed to enable existing religious corporations organized in good faith, for the advancement of religious interests, and for a time carried on for such purpose, to consolidate, when it becomes apparent that such interests can be better advanced by the union of the corporations.
    That on the 6tli day of October, 1885, the date of the execution of the consolidation agreement, the First Wesleyan Methodist Church of Rome was not a legal religious corporation, because the execution of this certificate had not been then proved or the certificate recorded.
    That if the First Wesleyan Methodist Church of Rome became a religious corporation on that day, David Byam, Adin H. Butler, Charles Shepard, Jesse M.White, four of the members and trustees of the Court (Liberty) Street Church, became corporators, and two of them, Byam and White, trustees of the Wesleyan Church, by which act the four ceased to be members and trustees of the Court (Liberty) Street Church, and Byam and White we're without power to sign the consolidation agreement, or the petition for the consolidation of the churches in behalf of the Court (Liberty) Street Church, so that the agreement and peti-tion were, in fact, signed by but one legal trustee.
    That when the majority of the trustees of one corporation are also the trustees of another corporation, boards of trustees so constituted cannot enter into a valid contract for the consolidation of the corporations. •
    That, as the statutes providing for consolidation confer upon the court the power, in its discretion, to give or withhold an order, even though a legal contract and petitions for the consolidation of two existing legal religious corporations he duly executed and presented to it, the Special Term, in this case, wisely exercised its discretion in withholding its consent to the attempted consolidation.
    Appeal by the First Wesleyan Methodist Church of Rome and the-Liberty Street Methodist Episcopal Church from an order of the Special Term of this court, dated October 8, 1887, and entered in the. office of the clerk of Oneida county on the 1st day of May, 1888, confirming the report of a referee. In the notice of appeal it was stated that the appellants also intended to bring up for review on said appeal, the report and decision of the referee.

      Jenkins & Devereux, for the appellants.

      Scripture & Backus, for the respondents.
   Follett, J.:

Appeal from an order of a Special Term, granted October 8, 1887, on notice, vacating an order of a Special Term granted November 11, 1885, without notice, consolidating The Court {alias Liberty) Street Methodist Episcopal Society of Rome . and The First Wesleyan Methodist Church of Rome under the corporate name of The First Wesleyan Methodist Church of Rome, New York.

July 24,1862, a religious corporation was duly incorporated (pursuant to section 3 of chapter 60 of the Laws of 1813) under the name of “ The Trustees of The Court Street Methodist Episcopal Church in Rome.” The corporators professed the faith of the Methodist Episcopal Church. December 30, 1862, the corporation received, under the name of “ The Court Street M. E. Society,” a grant of a church edifice and lot on Court street, in Rome, from The Court Street Baptist Society in Rome. In 1862 the county of Oneida was within the Black River Conference of the Methodist Episcopal Church, and remained therein until 1868, when the Central New York Conference was formed, which included said county; and it remained therein until 1872, when the Northern New York Conference was organized, which embraced said county, and within which conference said county now is. In April, 1883, said church applied to the Black River Conference for a preacher; its application was granted, and the church then became and continued a member of that conference and its successors until 1885, receiving-its preachers from said conferences, and, in all respects, recognizing the jurisdiction of the conferences. The church continued to own and occupy its property on Court street until October, 7, 1878, when it was exchanged for a church edifice and lot on Liberty-street, and thereafter the corporation (the civil organization) and the church (the religious organization) were known as “ The Liberty Street Methodist Episcopal Church in Rome;” but it does not appear that the corporate name was changed, pursuant to the statute. In April, 1884, the Hovthern Hew York Conference assigned the Rev. Ebenezer Adams as the preacher in charge of this church, and he entered upon the discharge of his duties; but, before the expiration of the year, many of the members of the church and congregation became greatly dissatisfied with him, and in April, 1885, sixty-one of his parishioners petitioned the conference not to continue him in charge of their church for another year; but the petition was not granted, and he was assigned as the preacher in charge for the next ecclesiastical year. In the language of the referee: “ From that time forward until October 6, 1885, troubles and disagreements continually existed between him and such persons, and there was great lack of obedience, by' him and such members, to those cardinal doctrines and behests of their denominational faith, which all professed — to promote peace and unity, to bear- one another’s burdens, to prevent each other’s stumbling; * "x" * and to pray and sympathize with each other.”

From April, 1885, to October 6, 1885, David Byam, Adin H. Butler, Llenry M. Perry, Charles Shepard and Jesse M. White,, five in all, were the trustees of said corporation. A few days, before October 6, 1885, seventy-three out of the eighty-five members of said church signed a paper, which is called a “ pledge,” of' which the following is a copy : “We, the undersigned, members, of The Liberty Street M. E. Church, believing that the interests of said society would be promoted by a change of our church name, relations and discipline, pledge ourselves to change our name to The-First Wesleyan Methodist Church of Rome, and to adopt the discipline of the Wesleyan Church of America, reorganizing as such, taking our church property with us.” This declaration of' intention clearly discloses the motives which actuated these persons in subsequently attempting to organize another religious corporation and obtain a consolidation of it with the old corporation.

October 6, 1885, thirty-six of the members of the church met at the dwelling-house of one of the members and signed a certificate of incorporation, by which they assumed to incorporate The First Wesleyan Methodist Church of Rome. Before this date no such corporation or church had existed in Rome. This meeting was not held pursuant to any public notice, nor at a place where the persons who met had been accustomed to meet for stated jmblic worship. The execution of this certificate was proved by a subscribing witness October 20,1885, and the certificate was recorded October 24, 1885, in the office of the clerk of the county of Oneida. In this certificate it is recited: “We, the undersigned, four of the trustees and seventy-one of the late members of the Liberty Street M. E. Church of the city of Rome, Oneida county, M. Y., and whose names and seals are affixed to this instrument, do hereby certify, that on the 6th day of October, 1885, the male members of full age worshiping in the church aforesaid (and being all members of the said Liberty M. E. Church, aforesaid, save fourteen only, and all the trustees save one, and all the stewards save three, believing the interests of said mem bers and society will be promoted and enhanced by a change of our church relations, and desiring to withdraw from the discipline of the M. E. Church and unite with and be subject to the discipline of the Wesleyan Church of America, taking our church property with us), and belonging to a church in which divine worship is celebrated according to the rites of said church not already incorporated, met at Ho. 9 Court street, in the city aforesaid, for the purpose of incorporating themselves, and did then and there,” etc. David Byam, Adin H. Butler, Charles Shepard and Jesse M. White, four of the members and trustees of the old church, signed this certificate, and Byam and White were named in the certificate as trustees of the new church.' October 6, 1885, an agreement to consolidate these two corporations (if there were two legal ones) was signed by David Byam, Adin II. Butler, Jesse M. White and Charles C. Shepard, four of the trustees of the old church, and by all of the trustees of the new church, by which it was recited that the new church had neither property nor debts, and that all of the property of the old church should. be conveyed to .the consolidated church, which was to be under the discipline of the Wesleyan Church of America. October 23, 1885, Adin H. Butler, David Byam, Charles Shepard and Jesse M. White, still assuming to act as trustees of the old church, signed and verified a petition to the Supreme Court for the consolidation of the two corporations, and on the same day the seven trustees of the new church signed and verified a like petition. Upon these petitions an order was granted at Special Term, consolidating the corporations. November 20, 1885, Henry M. Perry (who was one of the trustees of the old church) and four other members of the church, signed and verified a petition for the revocation of said order of consolidation. Upon the matter coming on to be heard it was referred to a referee to take evidence in respect to the questions of fact in dispute, and to report, with his opinion. A great amount of evidence was taken, the printed record containing 292 pages. The referee reported that the attempted consolidation was illegal, and that the order of consolidation should be vacated; which report was confirmed by. the court.

In this state, the purposes for which corporations can be organized are specified in the statutes, and we know of no statute authorizing the formation of a religious corporation for the sole purpose of consolidating it with another for the ultimate end of acquiring the property of the other and applying it to the maintenance of a church with a different polity and with a somewhat different faith. Nor were the consolidation statutes designed to authorize the consolidation of an existing religious corporation with one organized solely for the purpose of consolidation, but they were designed to enable existing religious corporations, organized in good, faith for the advancement of religious interests, and for a time carried on for such purpose, to consolidate, when it becomes apparent that such interests can be better advanced by the union of the corporations.

On the 6th day of October, 1885, the date of the execution of the consolidation agreement, the First Wesleyan Methodist Church of Rome was not a legal religious corporation, because the execution of its certificate had not been then proved or the certificate recorded. (Burt v. Farrar, 24 Barb., 518 ; Mokelumne Hill Carnal and Mining Co. v. Woodbury, 14 Cal., 424; 8 South. L. Rev. N. S., 528 ; Morawetz on Corp., § 17.) Childs v. Smith (55 Barb., 45), which was reversed on another question by the Court of Appeals (46 N. Y., 34), which court, in considering whether a corporation is legally organized before its certificate of incorporation is filed or recorded, said: If the parties meant such an organization as would create a corporation de jure, which' could successfully maintain itself against an inquiry on the part of the State, then it is evident that the time had not, at the commencement of this action, arrived at which the $2,000 became due and payable. For the parties had neglected to file certificates of association in accordance with law.”

While these serious defects of organization may not prevent a corporation from having, for some purposes, a legal existence until .annulled by an action brought for that purpose, yet such defects are a sufficient reasoh for refusing an order carrying into effect the proposed consolidation, for, from such a precedent great wrongs and mischiefs might easily flow. But if the First Wesleyan Methodist Church of Borne became .a religious corporation October 6, 1885, David Byam, Adin H. Butler, Charles Shepard and Jesse M. White, four of the members and trustees of the Liberty Street Church became corporators, and two of them, Byam and White, trustees of the Wesleyan Church, by which act the four ceased to be members and trustees (§ 2, chap. 79, L. 1815; Laight Street Baptist Ch. v. Noe, 12 How. Pr., 497) of the Liberty Street Church, and Byam and White were without power to sign the consolidation agreement or the petition for the consolidation of the churches in behalf of the Court (alias Liberty) Street Church. Hnless Byam .and White were trustees at this time, the agreement and petition were signed by but one legal trustee.

When a majority of the trustees of one corporation are also the trustees of another corporation, boards of trustees so constituted cannot enter into a valid contract for the consolidation of the corporations. (Stokes v. Phelps Mission, 47 Hun, 570; Metropolitan Elevated Railroad Co. v. The Manhattan Railway Co., 11 Daly, 373; Wardens, etc., of St. James' Church, v. Rector, etc., 45 Barb., 356; San Diego v. S. D. and L. A. R. R. Co., 44 Cal., 106; Pearson v. Concord R. R. Co., 28 Alb. Law Jour., 366.) So, if the position could be maintained that the Wesleyan Church was legally incorporated October 6, 1885, with Byam and White members of its '.board of trustees, and if it could be maintained that Byam and White still remained legal trustees of' the Court Street Church, the contract and the petitions for the consolidation of the two were not legally executed.

Though a legal contract and petitions for the consolidation of two existing legal religious corporations he duly executed and presented to the court, it may, in its discretion, give or withhold an order of consolidation. The statutes provide: “ The Supreme Court may, in case it shall deem it proper, make an order for the union and consolidation of such corporations, determining all the terms, conditions and provisions thereof.” (Sec. 5, chap. 209, Laws of 1875 ; § 3, chap. 176, Laws of 1876, and § 3, chap. 167, Laws of 1880.)

We see no occasion for doubting that the Special Term wisely exercised its discretion in withholding its confirmation of the attempted consolidation.

The order is affirmed, with costs.

Mabtin and Kennedy, JJ., concurred.

Order affirmed, with costs.


text:
    ABEL C. BENEDICT and LIZZIE P. BENEDICT, Appellants, v. THE SEVENTH WARD RAILWAY COMPANY OF SYRACUSE, N. Y., Respondent.

      Evidence must follow and, conform, to the allegations in the pleadings.

    Upon an appeal from a judgment dismissing the complaint, it appeared that since 1881 the plaintiffs had owned a lot on the west side of Montgomery street, in the city of Syracuse, on which was a dwelling in which they had resided; that the defendant corporation had laid a single railroad track in this street, and that the plaintiffs did not consent, pursuant to the act under which the defendant was incorporated (chap. 252 of 1884), that the road might be constructed in the street or the track laid in the street in front of their lot.
    Upon the trial the plaintiffs made no attempt to prove that the consent required by the Constitution and the street railroad act had not been obtained, but sought to maintain the action by an offer to prove that the center line of the street and the plaintiffs’ east line coincided, and that the west rails of defendant’s track were on their land without their consent.

      Held, that as the action was brought to restrain the defendant from laying or operating a track in this street, “ upon which the plaintiffs’ lands abut,” upon the ground that the defendant had not obtained the consent for the construction of the road from the owners of one-half in value of the property bounded on the street, or of the General Term of the Supreme Court, as required by section 18 of article 3 of the Constitution and of the street surface railroad act — but not on the ground that the plaintiffs owned the land in front of their lot and had not consented to its use by the defendant—the trial court properly held that the plaintiffs were not entiti ed to recover upon the theory that the defendant was a trespasser upon the land, if any, which the plaintiffs owned in the public street.

      Vail v. Long Island Railroad Company (106 N. Y., 283); Tracy v. Ames (4 Lans., 500); Southwick v. First National Bank of Memphis (84 N. Y., 420) followed.
    Appeal from a judgment entered January 23, 1888, in the Onondaga county clerk’s office, after a trial at the Special Term, dismissing the complaint, with costs to defendant.

      Waters & McLennan, for the appellants.

      Knapp, Nottingham, & Andrews, for the respondent.
   Follett, J.:

Appeal from a judgment entered on the decision of a Special Term, dismissing the complaint, with costs, which is heard in this court on a case containing all of the evidence.

Montgomery street extends north and south in the city of Syracuse, and is 100 feet wide. Since 1881 the plaintiffs have owned a lot on the west side of the street, which is fifty feet wide on the street and 132 feet deep, on which there is a dwelling, hi which they have resided since 1881. In 1886 the defendant was incorporated pursuant to chapter 252 oí thé Laws of 1884 (the street surface railroad act), and" laid a single track in this street, the rails being equi-distant from the center line of the street. Since the track was laid it has been used by the defendant for a street railroad, operated with horses. The plaintiffs did not consent, pursuant to the act referred to, that the road might be constructed in the street, nor did they consent that the track might be laid in the street in front of their lot. Before the track was laid, this action was brought to restrain the defendant from laying or operating a track in this strreet, “upon which the plaintiffs’ lands abut” upon the ground that defendant had not obtained consent for the construction of the road from the owners of one-half in value of the property bounded on the street, nor of the General Term of the Supreme Court, as required by section 18 of article 3 of the Constitution and the street surface railroad act; but not on the ground that the plaintiffs owned the land in front of their lot and west of the center line of the street, subject to the right of the public to use it for a street, and that plaintiffs had not consented to its use by the defendant.

The plaintiffs made no attempt to prove that the consent required by the Constitution and the street railroad act had not been obtained, but sought to maintain the action by offering to prove that the center line of the street and the plaintiffs’ east line coincided, and that the west rails of defendant’s track were on their land without their consent The court held that the only cause of action alleged in the complaint rested solely on the theory that the constitutional and statutory consents had not been obtained. We think an inspection of the complaint justifies this ruling. The court held that the plaintiffs were not entitled to recover upon the theory that defendant was a trespasser upon the land which they owned, if any, in the public street. In this the court committed no error. (Vail v. Long Island R. R. Co., 106 N. Y., 283.) The ancient rule, that the evidence must follow and conform to the allegations in the pleadings and tend to establish the cause of action or defense alleged, has not been abolished by the Code. (Tracy v. Ames, 4 Lans., 500; Southwick v. First National Bank of Memphis, 84 N. Y., 420; Pom. on Rem. and R., § 553 et seq.)

The judgment is affirmed, with costs.

Mabtin and Kennedy, JJ., concurred.

Judgment afirmed, with costs.


text:
    GEORGE H. STILLWELL, as Superintendent of the Poor of Schuyler County, Appellant, v. MICHAEL A. KENNEDY, as Overseer of the Poor of the City of Elmira, Respondent.

      Service of notices on county superintendents of the poor under sections 59-62 of 1 Bevised Statutes, pages 628, 629—personal service is not necessary to enable the town, city or county to contest its liability.

    Upon an appeal from a judgment dismissing the complaint, entered on a nonsuit, it appeared that a written notice, dated October 7, 1886, was given by the plaintiff to the. defendant informing him that one Charles S. Ayers was a pauper, and was being supported by the county of Schuyler, and that the plaintiff' claimed that the pauper was a resident of and chargeable to the city of Elmira. The written reply of the defendant, dated October 19, 1886, referred to the plaintiff’s notice by its date, acknowledged its receipt and denied that the pauper had ever resided at the city of Elmira, and, in effect, denied the liability of the city for his support’.

      Held, that the notice and reply were each sufficient as to form and in substance to enable the parties to this action to contest the question as to which was liable, under the provisions of sections 59, 80, 61, 62 of 1 Revised Statutes, 628, 629, for the support of the pauper.
    The plaintiff, who received the reply through the mail in due time, insisted that it was insufficient to enable the defendant to contest the question of liability, because it was not personally served upon him.

      Held, that as sections 60 and 61 of the statute simply provide that the county superintendent, upon whom the notice is served, shall, by a written instrument, notify the superintendent from whom it was received, that he denies the liability of his town, city or county; and as the statute is silent as to the mode in which the written instrument shall be put into the possession of the officer serving the notice of claim, and as the notice given in this case came into the'plaintiff’s hands in due time, and he retained it, without objection, the notice given was sufficient to enable the defendant to contest the alleged liability of his city.

      Rathbun v. Acker (18 Barb., 393); McDermott v. Board of Police (25 id., 635); S. C. (5 Abb., 422); People ex rel. N. B. & C. R. R. Co. v. Lockport and Buffalo Railroad Company (13 Hun, 211) distinguished.
    The testimony given upon the trial, considered by the General Term and held not to have justified the trial court in holding, as a matter of law, that the said Charles S. Ayers had not a legal settlement in the city of Elmira.
    Appeal by the plaintiff from a judgment of nonsuit directed by the court at the Schuyler Circuit March 7, 1888.

      Cole Brothers, for the appellant.

      H. H. Rockwell, for the respondent.
   Follett, J.:

Appeal from a judgment dismissing the complaint, with costs, entered on a nonsuit and heard in this court on a case which contains all of the evidence.

The parties agree that between April 1, 1886, and January 8, 1887 (the date this action was begun), the plaintiff necessarily expended seventy-six dollars in supporting Charles Sumner Ayres, a pauper, for the recovery of which sum, with interest, this action was begun. ■

Two questions are involved in this appeal: (1.) Was the notice given hy the plaintiff and the reply given by the defendant sufficient to enable the parties to litigate the question as to whether the county of Schuyler or the city of Elmira was hable for the support of the pauper ? (2.) Is the evidence sufficient to sustain the ruling that, as a matter of law, the pauper was not settled in and chargeable to the city of Elmira ?

The defendant contends that the written notice (dated October 7, 1886) given to him is insufficient to enable the plaintiff to maintain this action, and the plaintiff contends that the written reply (dated October 19, 1886) received by him through the mail is insufficient to enable the city of Elmira to contest its liability to pay the sum expended in supporting the pauper. These questions should be determined before considering the case on the merits.

The written notice given by the plaintiff to the defendant informed him that Charles S. Ayers was a pauper, was being supported by the county of Schuyler, and that the plaintiff claimed that the pauper was a resident of and chargeable to the city of Elmira. The written reply of the defendant referred to the plaintiff’s notice by its date, acknowledged its receipt and denied that the pauper had ever resided at the city of Elmira; and, in effect, denied the liability of the city for his support. The notice and reply are sufficient in form and in substance to enable the parties to this action to contest the question, as to which is hable for the support of the pauper. (1 R. S., 628, 629, §§ 59, 60, 61, 62; City of Lynn v. City of Newburyport, 87 Mass. [5 Allen], 545 ; Inhabitants of Wenham v. Inhabitants of Essex, 103 id., 117; Inhabitants of Shelburne v. Inhabitants of Buckland, 124 id., 117.)

The reply was received by the plaintiff through the mail in due time, but he insists that it is insufficient to enable the defendant to contest the question of liability, because it was not personally served. The plaintiff received the reply in time, and retained it without objection. The sixtieth and sixty-first sections of the statute above referred to provide that the officer receiving the notice shall, unless he concedes the liability of his town, city or county, within thirty days after the service of the notice, by a written instrument, under his hand, notify the county superintendent from whom such notice was received, that he denies the allegations of improper enticing or removal, or of the liability of his town, city or county for the support of the pauper. (Sec. 60.) The word “ service” is not used in this connection, and the statute being silent as to the mode in which the “ written instrument ” shall be put into the possession of the officer serving the notice of claim, and the notice having come into the plaintiff’s hands in due time, and he having retained it without objection, the notice given was sufficient to enable the defendant to contest the alleged liability of his city. In arriving at this conclusion we have not overlooked the cases (Rathbun v. Acker, 18 Barb., 393 ; McDermott v. Board of Police, 25 id., 635 ; S. C., 5 Abb., 422; People ex rel. N. B. & C. R. R. Co. v. Lockport and Buffalo R. R. Co., 13 Hun, 211), holding that when a notice must be given as a condition precedent to divesting a person of his property or of his office, that personal notice is required. Statutes under which a person may be deprived of his property or office, by a procedure not known to the common law, are construed favorably to the person attacked, and all the statutory steps must be exactly taken. Likewise, statutes which deprive a person or municipality of the right to contest in the courts alleged liabilities, must be construed favorably to the person or corporation seeking to contest such alleged liability.

Charles Sumner Ayers was the son of James C. and Sally Ayers, who were residents of the town of Beading, in the county of Schuyler, at the date of his birth, February 28, 185Y. From birth to April 13,186Y, he resided with his parents at said town, at which date his father died. May 3, 18Y0, the surrogate of the county of Schuyler appointed his mother the general guardian of his person and estate. He continxxed to reside with his mother in this town until December 1,18Y0, when she intennan*ied with W. D. Dxxncan. From that date he resided with his mother and stepfather in said town until July, 1872, when Hr. and Hi's. Duncan removed to Ottawa, Kansas. Shortly before his parents went west, and in January, 1872, Charles S. Ayers was attacked with cerebro spinal meningitis, which left his right side paralyzed and his power of speech greatly impaired. From that time to the present he has been physically and mentally feeble, and unable to work. When Mr. and Mrs. Duncan went to Kansas, they left the boy with an uncle, who resided in Ulysses, Tompkins county, where he remained until October, 1873 (his mother paying for his board), when he went to Kansas, where he resided with Mr. and Mrs. Duncan until they removed, in February, 1878, from Kansas to the city of Elmira, where they have ever since resided.

It is very clear that, by the removal of the mother and the son to Kansas, they lost their residence in this State and became residents and citizens of the State of Kansas. When Mr. and Mrs. Duncan removed to the city of Elmira, the boy was not of age, but became of age February 28, 1878. The boy did not go to Elmira with his parents, but was left with one George Burris at Iola, Kansas, and in the summer of 1879 followed his parents to Elmira. The last of the money which the boy derived from the estate of his father was drawn from the county treasurer of Schuyler county December 24, 1877, and, presumably, had been exhausted in his support. He was without property or health, and had little mental capacity. Before he became of age, and when he became of age, he was a poor person. (Hutchins v. Thompson, 64 Mass. [10 Cush.], 238.) Until a poor person acquires a settlement in his own right, his settlement is that of his father or mother. (1 R. S., 621, § 29, sub. 4; Niskayuna v. Albany, 2 Cow., 537.) When the mother became a resident of the city of Ehnira, and the boy followed her to that place, a residence and settlement were initiated. He never became a State pauper. (Laws 1873, § 1, chap. 661.)

From the summer of 1879 until August, 1881, he stayed part of the time with his parents at Elmira, and part of the time with relatives in the counties of Schuyler and Tompkins. In August, 1881, he went to Saville, Ohio, where he remained until July, 1884, when he returned to his parents at Elmira, in which city he remained until November, when he voted in that city at the general election. It does not appear what he did or how he was supported while he was in Ohio; nor does it appear that he did anything evincing an intent (if he was capable of forming one) to become a resident of that State. Assuming that he was capable of forming an intent as to his residence, we think the evidence shows that he understood that liis home and residence were at Elmira. From July, 1884, he traveled in the counties of Chemung, Schuyler and Tompkins, peddling books, notions and such things as he could carry in his pockets, he being unable to carry a bundle of any size. He stayed with his parents a few weeks at a time, and at other times with different relatives residing in the counties of Chemung, Schuyler and Tompkins. He kept his clothes in a trunk at his mother’s, and he swears that his home was with her at Elmira. In December, 1885, his mother hired Milton Raymond, of the town of Reading, Schuyler county, to board him at a price agreed upon, but afterwards refused to pay; and in April, 1886, he became a charge upon the public. His trunk remained at his mothers, at Elmira, until the spring of 1881, when she sent it to him.

The court having nonsuited the plaintiff, he is _ entitled to have this court take the view of the testimony which is most favorable to him; but this we have not strictly done, having stated such facts as do not seem to be controverted. Under the testimony the court erred in holding, as a matter of law, that Charles S. Ayres had not a legal settlement in the city of Elmira.

For this error the judgment must be reversed and a new trial granted, costs to abide the event. •

Martin and Kennedy, JJ., concurred.

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


text:
    THE GAS-LIGHT COMPANY OF SYRACUSE, Respondent and Appellant, v. THE ROME, WATERTOWN and OGDENSBURGH RAILROAD COMPANY, Appellant and Respondent.

      An amendment to the complaint, on the trial, which changes .the cause of action, should not he granted—in an action of ejectment mense profits a/re, under section 1531 of the Oode of Omil Procedure, only recoverable for the six years preceding the trial.

    In an action, brought to recover the possession of a lot in the city of Syracuse, and damages for the defendant’s wrongfully withholding the possession thereof and for running and operating its railroad upon and across the sarpe,thereby greatly depreciating the value of the plaintiff’s property, it appeared that since March, 1870, the plaintiff had owned in fee and been in the possession of a lot of land bounded on the north by the south side of West Genesee street, on the east by the center line of Franklin street and on the south and west by other lots; the land was ninety feet long, north and south on Franklin street, and eighty-one feet wide, east and west on West Genesee street, inclusive of one-half of the land in Franklin street.
    After the evidence had been closed, and on the day to which the case was adjourned for submission, the plaintiff tendered and asked leave to serve an amended complaint alleging that a short time before the intrusion of the said railroad tire plaintiff had purchased the said lot for the particular purpose of improving the premises so purchased by erecting thereon a building for its own use and occupation, as offices for the convenience and accommodation of its business, and that it was compelled to abandon such purpose because of the intrusion of the said railroad upon the plaintiff’s premises, and the dangers incident to such a situation, and the constant running of trains and the noise and smoke thereof, and the frequent standing of steam engines and trains on the railroad tracks in actual contiguity with the plaintiffs premises; and that from such cause the said premises had become unmarketable, and demanding a judgment for $5,000; and that unless the defendant paid such damages it should be restrained from maintaining and operating the said railroad.

      Held, that, as by the proposed amendment the plaintiff asked to change an action of ejectment into an action to compel the defendant to purchase land at a price to be fixed by the court, or remove its road from the land, the court properly denied the motion.
    The defendant entered into possession of the plaintiff’s land December 15, 1875; this action was begun April 4, 1883, tried December 1, 1885, and the judgment was entered on December 31, 1886. The court found that the damages for withholding the premises was fifty dollars per year for nine and one-half years from December 31, 1875. The plaintiff recovered a judgment for a piece of land described therein, which was all within Franklin street, except a triangular piece two feet eleven and one-half inches wide on the south side of Genesee street, and also the sum of $475 damages for the wrongful withholding of the land so recovered.

      Held, that the plaintiff was not entitled to recover mesne profits or damages for the wrongful withholding of premises until his right to recover the premises was established, and that the mesne profits, recoverable under section 1531 of the Code of Civil Procedure, should be assessed for the six years immediately preceding the trial of the action; that the judgment should be modified by reducing the damages by $175.

      Jackson v. Wood (24 Wend., 443); Budd v. Walker (9 Barb., 493); Grout v. Cooper (9 Hun, 326) followed.
    Appeal by the plaintiff from so much of a judgment rendered at the Onondaga Special Term, entered in the office of the clerk of Onondaga county on the 31st day of December, 1886, as adjudges that the plaintiff is not entitled to recover in this action any damages or depreciation resulting from or by reason of the intrusion into occupation and withholding by defendant, therein mentioned, of plaintiff’s adjoining lands, and other than that part of said lot occupied by defendant’s track and cars, as therein mentioned; also from that part of said judgment which, adjudges that plaintiff is not entitled to recover against the defendant in this action the lands or the possession thereof, being that part of said lot seven not occupied by or included within said track and the projection of cars passing over it; also from that part of said judgment which adjudges that plaintiff is not entitled to any relief in said action other than as mentioned in said judgment.
    The defendant appealed from the whole of the said judgment.

      George F. Comstock, for the plaintiff, appellant.

      Edmund B. Wynn, for the defendant, appellant.
   Follett, J.:

Appeal by both parties from a judgment entered on a decision of a Special Term and heard in this court on a case which contains all of the evidence, exceptions to the ■ decision by both parties and requests preferred by the plaintiff, pursuant to section 1023 of the Code of Civil Procedure.

Franklin street extends northerly and southerly through the city of Syracuse, crossing West Genesee street. Both were used as public streets before the city was incorporated. Franklin street is forty feet wide and West Genesee street is ninety-nine feet wide.

Since March 4, 1870, the plaintiff has owned in fee and been in possession of land bounded on the north by the south side of Genesee street, on the east by the center line of Franklin street and on the south and west by other lots. This land is ninety feet long, north and south on Franklin street, and eighty-one feet wide, east and west on West Genesee street, inclusive of one-half of the land in Franklin street, or sixty-one feet wide, exclusive of the land in Franklin street and west of the center line thereof.

February 25, 1868, the Syracuse Northern Railroad Company was incorporated under the general railroad laws of this State, and in 1871 laid a track through Franklin street, west of the center line thereof, and upon land bounded east by said center line and west by the west line of said street, which is owned by the plaintiff, subject to the right of the public to use it for a street. In 1872 this railroad was opened for traffic, and in August, 1875, it was sold under a mortgage foreclosure and reorganized under the name of the Syracuse and Northern Railroad Company. December 15, 1875, the last-named corporation was consolidated with the defendant, which corporation has since maintained and operated said road. April 4,1883, this action was begun to recover the possession of the whole lot and damages for wrongfully withholding “ the possession thereof, running and operating its said railroad upon and across the same, greatly depreciating and injuring the said property and the value thereof, to the great damage of the plaintiff, in the sum of five thousand dollars.”

The plaintiff had a judgment for the recovery of the following described land: “ Beginning at the north-east corner of said block, number eighty-five, at the intersection of the south line of West Genesee street with the west line of Franklin street; thence west on the south line of West Genesee street, two feet eleven and onehaif inches; thence southerly on a straight line ninety feet to a point nine feet east of the west line of Franklin street; thence east parallel to West Genesee street, eight feet eight and one-half inches; thence in a direct line northerly, about ninety feet to the place of beginning, being the part of plaintiff’s said lands and premises which are covered by and included within the railroad track of the defendant and the projection of the cars and engines run on and over said track, * * * subject to the easement of the public in so much of said premises as lies within the bounds of said Franklin street.” The land recovered is all within Franklin street, except a triangular piece two feet eleven and one-half inches wide on the south line of West Genesee street, the east and west lines of which converge and meet at a point in the west line of Franklin street, about twelve feet southerly from the south line of West Genesee street, and is wholly west of Franklin street. The damages for the wrongful withholding of the land recovered were assessed at $475.

The plaintiff seems to have tried this action u¡3on the theory that it could recover its land occupied by the defendant, and also the difference in the value of the lots, with and without the railroad. Four witnesses were sworn in behalf of the plaintiff upon this issue, who testified that the presence and operation of the railroad diminished the value of the lots fifty per cent, fifty dollars for each foot on Genesee street, sixty-one feet, or $3,050. Four witnesses were sworn in behalf of the defendant upon this issue, two of whom testified that the railroad did not injure the lots, and two of whom 'testified that it diminished the value of the lots by twenty to twenty-five per cent. Ho witnesses testified to the rental value of the lots between the date when the road was constructed and the date of the trial; and the only evidence from which the rental value could be inferred (aside from the general description of the property) was, that the plaintiff had received during the ten years prior to December, 1885, $371.32 over and above taxes, insurance and expenses. Ho evidence as to how much the rental value was diminished by the railroad appears in the case.

The evidence was closed December 1, 1885, and the case was adjourned until January 16,1886, for submission, at which date the plaintiff tendered and asked leave to serve an amended complaint, containing, among others, the following allegations and demands for judgment:

“ The plaintiff further says that only a short time before the intrusion of the said railroad the plaintiff had purchased and taken title to a lot of land fronting northerly on said West Genesee street, extending in the rear about ninety feet from the south line of that street, and lying alongside of and bounded on the east by the center line of Franklin street, so as to include the spaces hereinabove particularly described, and that the plaintiff had made such purchase for the particular purpose of improving the premises so purchased by erecting thereon a building for its own use and occupation as offices for the convenience and accommodation of its business; that the said plaintiff did actually make its plan and preparation for such building, but was compelled to abandon such purpose by the intrusion of said railroad, the actual contact thereof with plaintiff’s premises, the dangers incident to such a situation, the constant running of trains and the noise and smoke thereof, and the frequent standing of steam engines and trains on the railroad tracks, in actual contiguity with the plaintiff’s premises aforesaid.
That from such causes the premises aforesaid became unmarketable and were permanently depreciated in value to the extent of one-half.
“ That the defendant has, at all times since it took possession as aforesaid, maintained the said nuisances to the present time, and, although requested to remove the same or to compensate the plaintiff for the injury so inflicted, has refused so to do and threatens to perpetuate the injury by the continuance of such nuisances.
“ By reason of all the premises the plaintiff demands judgment for $5,000 damages on account of the injuries aforesaid, and that unless and until the defendant pay such damages it be restrained and enjoined from maintaining, using or operating the said railroad; and the plaintiff demands such further or other judgment and relief as the case may require.”

By the proposed amendment the plaintiff asked leave to abandon its “ action to recover real property ” and to prosecute an action to restrain defendant from operating its railroad in the street unless it should pay for the right a sum to be fixed by the qourt. This, as was held by the court, was asking to change an action of ejectment into an action to compel the defendant to purchase land at a price to be fixed by the court or remove_ its road from the land, and was properly denied. For the same reason the court properly refused to permit the plaintiff to so change the cause of action, by granting the relief asked for, upon the evidence, and .without amending the complaint. '

The distinction which formerly existed between damages for the wrongful withholding of land recoverable in and only in an action of ejectment, and the rents and profits, or mesne profits, which might be recovered in the action of ejectment or in a subsequent action. (Larned v. Hudson, 57 N. Y., 151; Cagger v. Lansing, 64 id., 417) is abolished by.sections 484, subdivision 5, 1496, 1497 and 1531 of the Code of Civil Procedure.

Under the old Code rents and profits could not be recovered in an action of ejectment unless the complaint contained an independent count 'claiming them. The complaint in this action contains no such count, but the court held, in effect, that the distinction between rents and profits and damages being abolished, the mesne profits could be recovered though not claimed in an independent count. Of this the plaintiff can not complain.

When land is recovered in ejectment the damages done by the defendant to the freehold may be recovered with the mesne profits. (Liford's case, 11 Rep., 51; Dewey v. Osborne, 4 Cow., 329 ; Morgan v. Varick, 8 Wend., 587; Alsop v. Peak, 2 Root, 224; Lippett v. Kelley, 46 Vt., 516; Huston v. Wickersham, 2 Watts & S., 308; Adams Ej., 391; 1 Sedg. on Dam. [7th ed.], 251.) Such damages are not general damages, and cannot be recovered unless alleged in the complaint. And when part of a lot is withheld by an intruder from the rightful possessor who seeks to recover the part by ejectment, with the damages sustained by the diminution of the rental value of the whole lot, such special damages must be specifically alleged. Such special damages' were not alleged in the original complaint nor in the proposed amended complaint, and cannot be recovered in this action.

The plaintiff’s appeal cannot be sustained.

The owner of the fee of land which is subject to the-right of the public to use it for a street may recover such part of it as is entered upon, without the consent of the owner, and used by a railroad operated by steam. (Carpenter v. Oswego and Syracuse R. R. Co., 24 N. Y., 655 ; Wager v. Troy Union R. R. Co., 25 id., 526.) The defendant entered into possession of the plaintiff’s land December 15, 1875. This action was begun April 4, 1883, was tried December 1, 1885, the decision was signed December 22; 1886, and the judgment was entered December 31, 1886. The court found that the damages for withholding the premises was fifty dollars per year for nine and one-half years from December 31, 1875, $475, for which sum, with costs, a judgment was entered. The defendant excepted to the award of damages and insists that the plaintiff was not entitled to recover for the use and occupation of the land for more than six years.

In Jackson v. Wood the plaintiff recovered a judgment in ejectment in October, 1826, which was affirmed in the Supreme Court in August, 1829 (3 Wend., 27), hut was reversed by the Court of Errors in December, 1831. (Wood v. Jackson, 8 Wend., 9.) The case was retried, and May 4, 1835, the plaintiff again recovered a judgment, which was affirmed in the Supreme Court, and in December, 1837, by the Court of Errors. (18 Wend., 107.) The plaintiff obtained possession of the premises under his judgment March 1,1838, and then entered a suggestion upon the record, pursuant to section 44, 2 Revised Statutes, 310, claiming $20,000 mesne profits between March 16,1818, and May 4,1835, and $5,000 mesne profits between May 4,1835, and March 1, 1838. The defendant did not plead that he was ¿rot liable (2 R. S., 311, § 50) for mesne profits for more than six years. The case was referred to referees, who reported that the defendant took possession of the premises March 1, 1822, and if he was liable for mesne profits from that date, the plaintiff was entitled to recover $13,800, but if the defendant was only liable for mesne profits for the six years next preceding the entry of the judgment (May 4, 1835) and for the time thereafter during which the writ of error was pending, the plaintiff was entitled to recover $7,289.04. In making up this sum, it was held that the plaintiff was entitled to interest upon the rents from each quarter day. It was also held that the plaintiff was entitled to a judgment for $7,289.04. (Jackson v. Wood, 24 Wend., 443.) This is not an' authority for the position that a plaintiff who recovers land in ejectment is entitled to recover mesne profits for six years prior to the date when he began his action, and mesne profits from the date when the action was begun to the date of the recovery of the judgment, but is adverse to this position.

In Budd v. Walker (9 Barb., 493) the plaintiff began, July 12, 1837, an action of ejectment, and recovered a judgment December 30, 1844. In April, 1845, the plaintiff entered a suggestion upon the record, claiming mesne profits between July 12, 1837, and April 15, 1845, hut was allowed to recover mesne profits only for tlie six years next before the filing of the suggestion. These cases were cited and approved in Grout v. Cooper (9 Hun, 326).

A plaintiff is not entitled to recover mesne profits or damages for the wrongful withholding of premises until his right to recover the premises is established, and the mesne profits recoverable under section 1531 of the Code of Civil Procedure should be assessed for the six years immediately preceding the trial of the action. The damages in excess of $300, fifty dollars per year for six years, ought not to have been allowed; and the judgment should be modified by reducing the damages by $115, and, as modified, affirmed, without costs to either party.

Martin, J., concurred.

Judgment modified by reducing the damages to the sum of $300, and, as modified, affirmed, without costs to either party.


author: Martin, J.:

text:
    HENRY J. MOWRY and GEORGE M. BARNES, Respondents, v. THE WESTERN UNION TELEGRAPH COMPANY, Appellant.

      Rules of telegraph companies limiting their liability for mistakes do not apply to gross negligence—when a company will be chargeable with notice of the special damages which will arise from its failure to transmit an answer to a message received on the same day.

    On August 7, 1885, the plaintiffs received, through a telegraph office at Syracuse, managed and controlled by the defendant, a message from Armour & Co., dated Chicago, seventh, which gave the price of “hams, sixteens,” shoulders, lard and heef hams. On the same day, and after the receipt of this message, the plaintiffs prepared and caused to be delivered to the defendant, at the same office, this reply: “ Will take two cars sixteens. Ship soon as convenient via West Shore The blank upon which this message was written contained a provision, that all messages were subject to the following terms: “To guard against mistakes or delays the sender of the message should order it repeated, that is, telegraphed back to the originating office for comparison. For this one-half the regular rate is charged in addition. It is agreed to between the sender of the following message and this company that said company shall not he liable for mistakes or delays in the transmission or delivery, or for non-delivery of any unrepeated message, whether happening by negligence of its servant, or otherwise, beyond the amount received for sending the same.

      The plaintiff paid the regular charges established by the defendant for the transmission of such message, but not the charges for a repeated message. When the plaintiff's message was delivered at the defendant’s office the person in charge placed it among the messages to be sent. Thereafter it was taken by the defendant’s operator, who called the office to which it was to be transmitted and found the wire in use. While waiting his attention was engaged by some person having business at the office, and before attending to him the operator placed the plaintiff’s message among the messages that had been sent, in consequence of which the message was not sent until seven or eight days afterwards, when the plaintiff called the operator’s attention to the fact that it had not been sent. It was then sent without the'plaintiff’s knowledge, and, as between the time of its delivery to the defendant and the time when the plaintiff first learned that it had not been sent, the market-price of the hams ordered advanced one-half a cent a pound, the plaintiffs were, compelled, by reason of the defendant’s neglect, to pay $225 more for the goods than they would have done if such telegram had been sent and delivered within a reasonable time.
    On the trial of this action the court found that the omission to send such message was due to the gross carelessness and negligence of the defendant; that, by. reason thereof, the plaintiffs sustained damages to the amount of $225,and ordered judgment for the plaintiffs for that amount and costs.
    Upon an appeal from the judgment the defendant claimed that the only damages the plaintiffs were entitled to recover [was the sum of twenty-two cents paid for the transmission of the message, upon the ground that the defendant’s liability was limited by the provision contained in the blank on which the message was written.

      Held, that, as the court had found that the loss sustained by the plaintiffs was' caused by the gross negligence of the defendant, the contract between the parties did not limit the plaintiffs’ right of recovery to that amount.
    The defendant also claimed that the plaintiffs could only recover such damages as were the natural and necessary consequences of the defendant’s failure to send the message; and that, as the plaintiffs’ telegram was designed for a special purpose, which was not disclosed to the defendant, it was not liable for the damages awarded by the judgment.

      Held, that, as the message was an answer to the message received from Armour & Oo. through the defendant on the same day, and its contents were such as to indicate clearly to the defendant that it was important, and that a contract for the purchase of two car loads of hams was being made by the parties, and that the failure to send the message must result- in such loss to the parties as would naturally follow from a failure to complete such contract, the defendant was liable to the plaintiffs for the damages which were awarded in this case
    Appeal from a judgment of the Onondaga Oounty Court, entered in the clerk’s office of that county on May 17, 1884, for $249.05, upon the decision of the said court.

      J. William Wilson, for the appellant.

      Hiscock, Doheny & Hiscock, for the respondents.
   Martin, J.:

That this action was properly brought against the defendant is not questioned. On August 7,1885, the plaintiffs received through a telegraph office at Syracuse, managed and controlled by the defendant, the following message:

“ Dated Chicago, Illinois, Ith.
“ Received at Syracuse, N. Y., 11.50 a. m., August 7, 1885.
“ To Howry & Barnes :
“ Pickled hams, sixteens, nine and a half; shoulders, five quarters; lard, six thirty-two and a half; beef hams, nineteen.
“ARHOUR & CO.”
On the same day, and after the receipt of this message, the plaintiffs prepared and caused to be delivered to the defendant, at the same office, a message which was as follows :
“ Syracuse, August 7, 1885.
“ To Armour & Co., OMoago :
“Will take two cars sixteens. Ship as soon as convenient via West Shore.
“HOWRY & BARNES.”

The plaintiffs paid the regular tolls or charges established by the defendant for the transmission and delivery of such message, but not the charges for a repeated message. The blank upon which this message was written contained the following provisions: “ All messages taken by this company are subject to the following terms: To guard against mistakes or delays, the sender of a message should order it repeated; that is, telegraphed back to the originating office for comparison. For this one-half the regular' rate is charged in addition. It is agreed between the sender of the following message and this company that said company shall not be liable for mistakes or delays in the transmission or delivery, or for non-delivery, of any unrepeated message, whether happening by negligence of its servants or otherwise, beyond the amount received for sending the same. * * * The company will not be liable for damages in any case where the claim is not presented in writing within sixty days after sending the message.”

The message from the plaintiffs to Armour & Co. was in answer to the message by Armour & Co. to plaintiffs, whereby they offered to the plaintiffs hams, sixteens, at nine and one-half cents per pound, and plaintiffs’ message was an acceptance of such offer and an order for two car loads of such hams at that price. When the plaintiffs’ message was delivered at the defendant’s office, the operator in charge placed it among the messages to be sent. When, in the order of transmitting messages, it was reached, it was taken by the defendant’s operator from the place where messages to be sent were kept, and he called the office to which it was to be transmitted and found the wire in use. While waiting, his attention was engaged by some person having business at the office, and, before attending to him, the operator placed the plaintiffs’ message among the messages that had been sent. As a consequence, the message was not sent until seven or eight days afterwards, when the plaintiffs called the operator’s attention to the fact that it had not been sent. It was then sent without the plaintiffs’ knowledge. Between the time of the delivery of this message to the defendant, and the time when the plaintiffs first learned that it had not been sent, the market-price of the liams ordered advanced one-lialf a cent a pound, and, by reason of the defendant’s neglect to send such message, the plaintiffs were compelled to pay $225 more for the same goods than they would have purchased them for, if such telegram had been sent and delivered within a reasonable time.

Within sixty days after the delivery of such message the plaintiffs presented a claim to the defendant for the damages sustained by them, which was rejected by the defendant, except that it offered to repay the plaintiffs the sum paid for the. transmission and delivery of such message. On the trial the court found that the omission to send such message was due to the gross carelessness and negligence of the defendant; that by reason thereof the plaintiffs sustained damage to the amount of $225, and ordered judgment for the plaintiffs for $200 and costs.

The only question presented on this appeal is the question of damages. The defendant claims that the only damages that the plaintiffs were entitled to recover was the sum of twenty-two cents paid for the transmission and delivery of this message. This claim is sought to be maintained on the grounds, first, that the defendant’s liability was limited by the provisions contained in the blank upon which the message was written; and, second, that, independent of those provisions, the plaintiffs could recover only the sum paid for sending- the message. Upon the first of these propositions the defendant in its brief says: Telegraph companies have the right to make reasonable rules for the conduct of their business, and can limit their liability for mistakes not occasioned by gross negligence or willf ul misconduct, by notice brought home to the sender of the message, or by special contract.” The correctness of this statement of the law is not disputed by the plaintiffs, so that the question is not as to the rule contended for, but as to its applicability to the facts of this case. The rule as stated excepts from its operation a liability occasioned by gross negligence or willful misconduct. The plaintiffs claim that the loss sustained by them was caused by the gross negligence of the defendant. The court so found. We think the evidence sufficient to uphold that finding. Hence, we conclude that the contract between the parties did not limit the plaintiffs’ right of recovery to the amount paid by them for the transmission and delivery of the message. But the defendant also claims that the plaintiffs could only recover such damages as were the natural and necessary consequence of the defendant’s failure to send this message; that the plaintiffs’ telegram was designed for a special purpose, which was not disclosed to the defendant, and that the damages awarded were for an injury sustained by not accomphshing that purpose, and hence, it was not liable. As sustaining this claim it cites the cases of Baldwin v. The United States Telegraph Company (45 N. Y., 744); Hart v. Direct United States Cable Company (86 N. Y., 633) and McColl v. Western Union Telegraph Company (7 Abb. N. C., 151). The doctrine of the cases cited is, that a telegraph company is not liable for a special loss caused by delay or non-delivery of a message where it lias no notice either by the contents of the message, o? otherwise indicating its importance, or that special damages will result from its neglect. Assuming, as we do, without passing upon the question, that this doctrine is applicable where the injury results from the gross negligence of the defendant, and the question is, whether the doctrine of those cases is prohibitive of recovery of the damages awarded herein.

In this case there was no evidence of any notice to the defendant of the purpose of the message, of its importance, or that special damages would result from a neglect to send it, other than that given by the contents of the message which the plaintiffs sought to have sent and by the contents of the message received, to which the plaintiffs’ message was a reply. But, on the seventh of August, the plaintiffs received a message from the defendant which gave the price of hams, shoulders, lard and beef ¡hams. In answer to that the plaintiffs, on the same day, delivered to the defendant at the same office this reply: “ Will take two cars sixteens. Ship soon as convenient via West Shore.” That the defendant must, from this transaction and from the contents of these telegrams, have clearly understood that the plaintiffs were accepting an offer made by Armour & Co., and purchasing two car loads of hams at the price named, there can be little or no doubt. We think the contents of this message were such as to indicate clearly to defendant that it was important, that a contract for the purchase of two car loads of hams was being made by the parties, and that a failure to send the message must result in such loss to the parties as would naturally follow from a failure to complete such contract.

We are of the opinion that the defendant was liable to the plaintiffs for the damages which were awarded in this case. (Leonard v. N. Y. A. and B. Electro Magnetic T. Co., 41 N. Y., 544; Rittenhouse v. Independent Line of Telegraph, 44 id., 263; DeRutte v. N. Y., A. and B. E. M. Tel. Co., 1 Daly, 548; Bryant v. Am. Tel. Co., Id., 575; Sprague v. W. U. Tel. Co., 6 id., 200; affirmed, 67 N. Y., 590; Pearsall v. W. U. Tel. Co., 44 Hun, 532; U. S. Tel. Co. v. Wenger, 55 Pa., 262; Squire v. W. U. Tel. Co., 98 Mass., 232; Thompson v. W. U. Tel. Co., 64 Wis., 531; Manville v. W. U. Tel. Co., 37 Iowa, 214.)

It follows that the judgment appealed from should be affirmed.

Kennedy, J., concurred ; Follett, J., concurred in result.

Judgment affirmed, with costs.


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    JESSE W. BILLINGTON, Respondent, v. MICHAEL CAHILL, Appellant.

      Statute of frauds—oral contract for employment for a year, to commence the next day, is void,.

    Whore under an oral contract for the employment of a person for the term of one year the employment is to commence on the following day,the contract is void, as being within the provision of the statute of frauds (3 R. S. [7th ed.], 2327, § 2), which declares that every agreement that, by its terms, is not to be performed within one year from the making thereof, shall be void unless such agreement, or some note or memorandum thereof, be in writing and subscribed by the party to be charged therewith.
    Appeal from a judgment of the Onondaga County Court, entered in the office of the cleric of that county on March 27, 1887, upon the verdict of a jury and from an order denying a motion for a new trial, made upon the minutes of the county judge the same day.

      Goodelle & Nottingham, for the appellant.

      B. N. Bailey and M. M. Waters, for the respondent.
   Martin, J.:

The defendant dismissed the plaintiff from his service on the 26th day of November, 1885. The plaintiff claims that such discharge was wrongful in that it was a breach of the contract between them by which the defendant employed the plaintiff for the period of one year from April 1, 1885. It was to recover damages for such alleged breach of contract that this action was brought.

In his complaint the plaintiff alleges that on or about the month of March, 1885, the plaintiff and defendant entered into an agreement «whereby the plaintiff agreed to work for the defendant at farm work for the term of one year, to commence on the 1st day of April, 1885, and expire on the 31st day of March, 1886, at the stipulated price of thirty dollars per month, payable monthly during that time ; that the plaintiff was also to have the use of a certain house and garden situated on defendant’s farm; to have a certain quantity of 'milk, a certain proportion of the chickens and eggs produced on the premises, a team to draw his coal or fuel, half of a pig and what fruit was necessary for his family use. The defenses interposed by the defendant were: 1. A substantial denial of the allegations of the complaint. 2. That the plaintiff had been fully paid. 3. That the plaintiff was properly discharged for not complying with the conditions of his employment, and for not faithfully discharging the duties of his service.

On the trial the defendant moved for a nonsuit upon the ground that the contract upon which the plaintiff sought to recover was void under the statute of frauds, and that the plaintiff was properly discharged for disobeying defendant’s order. This motion was denied and the defendant duly excepted. The correctness of this decision is challenged by the appellant, and presents the questions: 1. Whether the contract between the parties was within the statute of frauds and consequently void. 2. Whether the plaintiff was improperly discharged.

That the agreement between the parties was in writing, or that there was any note or memorandum thereof, is not claimed; that it was made in the month of March, and was for the employment of the plaintiff for the term of one year, to commence on the 1st day of April, 1885, was alleged in the complaint and proved by the plaintiff on the trial; so, that upon the plaintiff’s own showing, the agreement was for his employment by the defendant for the full term of one year, to commence at a future day. Hence, the question is presented, whether the contract was void as being within the provisions of the statute of frauds, which declares that every agreement that by its terms is not to be performed within one year from the making thereof shall be void, unless such agreement or some note or memorandum thereof be in writing and subscribed by the party to be charged therewith. (3 R. S. [7th ed.], 2327, § 2.)

The appellant contends that the agreement between the parties, as alleged and proved by the plaintiff, was within the statute and void, and that the court erred in denying the defendant’s motion for a nonsuit. It seems to be admitted by the respondent that if the agreement was made prior to the 31st day of March, 1885, it was void under the statute of frauds; but he claims that there was evidence sufficient to justify the jury in finding that the agreement was made on the thirty-first of March; that it so found, and, therefore, the agreement could have been fully performed within one year from the making thereof, and was not within the statute.

An examination of the plaintiff’s evidence in this case tends to show quite conclusively that the agreement was, in fact, made several days before the 31st of March, 1885. He testified that he had three conversations with the defendant; that at the first con vernation, which he testified was about the tenth of March, the defendant stated to him the price which he would pay and the things he would furnish the plaintiff if employed by him; that ujdoii the second occasion, which was several days before the first of April, he told the defendant that he had made up his mind to accept his offer, but there were a few things which he wanted to talk about, which were talked over and agreed upon; that subsequently, upon the thirty-first day of March, and after he had moved all his goods on to the defendant’s premises, save the last load, he and the defendant had another conversation about the contract; that he told the defendant they had better have their contract understood and have writings so there would not be any trouble about it; that the defendant said he did not think they needed any writings; that both understood the bargain, and that they did not have any. But upon his cross-examintion the plaintiff testifies, in substance, that the terms of the agreement between them were restated by the parties on that day. While doubting the sufficiency of that evidence to show that the contract was made on that day (Oddy v. James, 48 N. Y., 685 ; Wanamaker v. Rhomer, 23 Weekly Dig., 60; Snelling v. Lord Hunting field, 1 C., M. & R., 20), still, it is possible, if the contract was valid if made then, that there was sufficient evidence to justify the submission of that question to the jury, and to uphold its finding that the contract was made at that time. If, however, we assume that the contract between the parties was completed on March thirty-first) then the inquiry is presented whether a contract for the employment of another for the term of one year, to commence on the following day, is within the foregoing provision of the statute of frauds. The respondent contends that it is not, and cites, as authorities sustaining his contention, the cases of Cawthorne v. Cordrey (13 C. B. [N. S.], 406); Dickson v. Frisbee 52 Ala., 165) and McAleer v. Corning (50 Supr. Ct. [J. & S.], 63). A careful examination of the case of Cawthorne v. Cordrey discloses that the doctrine contended for was not held in that case. While the head note is to the effect that a contract for a year’s service made on the twenty-fourth of March, to commence on the twenty-fifth of the same month, is not void by the statute of frauds, still, when the case is examined it will be seen that all that was decided was that there was evidence in that case upon which the jury might find that the contract was made on Monday for service for a year from that day, and that it was to be performed within a year from that time. (Britain v. Rossiter, L. R., 11 Queen’s Bench Div., 123, 124.)

In the case of Dickson v. Frisbee the doctrine contended for was held by the Supreme Court of Alabama, but the decision in that case was based upon the case of Cawthorne v. Cordrey, and upon an understanding that that case decided that a contract made on one day for a year’s service to commence on the next, was not within the statute. As we have seen, it was not so held in that case, hence, the Dickson case was decided under a misapprehension of the decision in the Cawtliorne case, which very materially diminishes the importance of that case as an authority upon the question. It was held in the McAleer case that if a contract of hiring is made for one year to begin m prmsenti, although no services are to be performed by the employee until a future day, the contract is operative from the day of its making, and the year ends with the ending of one year from that day, and such a contract is not within the statute-This examination of the authorities cited by the respondent shows that none of the cases relied upon by him uphold the doctrine for which he contends, except the case of Dickson v. Frisbee, and that that case was decided upon a misapprehension of the decision in the Cawtliorne case. On the other hand, the authorities cited by the appellant seem to hold the doctrine quite distinctly that such a contract is within the statute and void.

In Bracegirdle v. Heald (1 Barn. & Ald., 722), it was held that a contract for a year’s service to commence at a subsequent day, being a contract not to be performed within the fourth section of the statute of frauds, must be in writing. In that case Lord Ellen-borough said: “ This case falls expressly within the authority of Boydell v. Drummond (11 East, 142), cmd if we were to hold that a case which extended one mimóte beyond the time pointed out by the statute did not fall within its prohibition, I do not see where we should stop; for in point of reason an excess of twenty years will .equally not be within the act. Such difficulties rather turn upon' the policy than upon the construction of the statute. If a party does not reduce his contract into writing he runs the risk of its not being valid in law, for the legislature has declared in clear and intelligible terms that every agreement that is not to be performed within the space of one year from the making thereof shall be in writing.”

In Snelling v. Lord Huntingfield (1 C., M. & R., 20), where A, on the twentieth of July, made proposals in writing (unsigned), to B to enter his service as bailiff for a year, and B took the proposals and went a'way and entered into A’s service on the twenty-fourth of July, it was held that this was a contract on the twentieth, not to be performed within the space of one year from the making, and was within the fourth section of the statute of frauds.

In Levison v. Stix (10 Daly, 229) it was held that an oral agreement made on the thirty-first day of December for services to be rendered for a period of one year, which was to terminate on the thirty-first day of December of the following year, was void under the statute of frauds. In delivering the opinion in that case, the court says: “ In fact, it is impossible to see, if the term of service is to commence at any time subsequent to the time of making the contract, and the contract is for a full year, how it is possible that it should be performed within a year. It is undoubtedly the intention of the statute to require that all contracts which are not to be performed within one year from the time of making shall be in writing; and, in order that they shall be completed within the year, it is absolutely necessary that the time of making and the year of performance must be within the same year; and if the time of making is to be excluded and the time of performance is to be a full year, the contract cannot be performed within the year within which it was made.”

In Sutchliffe v. Atlantic Mills (13 R. L, 480), where an oral contract was made between A and B on August twentieth, by which A was to enter B’s service for one year, A to begin the term of service as soon as he could, and A began to work for B August twenty. seventh, it. was held that the contract was within the statute of frauds, being an oral contract and not to be performed within a year, and that an action by A against B for a breach of this contract could not be maintained.

In Wood on the Statute of Frauds, it is said “ a contract for a year’s service to commence at a future day, being a contract not to be performed within a year from the making thereof, is within the statute.” (Sec. 272.) The' same doctrine is laid down in Smith on the Law of Master and Servant, and Wood on Master and Servant. (Oddy v. James, 48 N. Y., 685 ; Amburger v. Marvin, 4 E. D. Smith, 393 ; Blanck v. Littell, 9 Daly, 268; Nones v. Homer, 2 Hilt., 116.)

To hold that a contract made on the 31st day of March for service for one year, to' commence on the first day of April, was not within the statute of frauds, would be to evade and not to execute that statute. The mandate of the statute is positive that an agreement that, by its terms, is not to be performed within one year from the making thereof shall be void, unless it is evidenced by some writing signed by the party to be charged therewith. It is not apparent to us how it can be fairly held that a contract for a full year’s service can be performed within one year from the making thereof, when it was made on a day previous to the commencement of the year. If this statute can be thus extended for one day, why may it not be extended indefinitely ? The agreement in this case was within the letter and intent of the statute, even if made when claimed by the respondent. The weight of the authorities is to that effect.

We are of the opinion that the agreement, as alleged and proved by the plaintiff, was within the provision of the statute of frauds and void; that the trial court erred in denying the defendant’s motion for a nonsuit made on that ground; and that for such error the judgment should be reversed. This conclusion renders it unnecessary to examine the other questions in the caso.

Judgment and order reversed on the exceptions, and a new trial granted, with costs to abide the event.

Follett and Kennedy, JJ., concurred.

Judgment and order reversed on the exceptions, and a new trial granted, with costs to abide the event.