author: Matham, P. J.:

text:
    August Grill, Appellant, v. Charles E. Wiswall, Respondent.

      Injunction pendente lite — its granting discretiona/i'y — when reversed on appeal.

    An injunction pendente lite will not ordinarily tie granted where the whole equities of the plaintiff’s hill are denied; such rule, however, is not of universal application and has some well-established exceptions calculated to guard the rights of parties from injury pending the litigation, and it is only where the whole equities of the bill are positively denied under oath that an injunction will be dissolved on that ground.
    In order to secure the exercise of the extraordinary power of the court in granting an injunction in favor of the plaintiff before the trial of an action, it must appear, upon the facts before the court, that the plaintiff will, if the injunction is not granted, suffer irreparable injury.
    The granting of an injunction pendente lite rests in the sound discretion of the court of original jurisdiction, and should only be reversed by the General Term for an error in the exercise of such discretion.
    Appeal by tbe plaintiff, August Grill, from an order of tbe Supreme Court, made at the Albany Special Term and entered in tbe office of tbe clerk of tbe county of Albany on tbe 9th day of June, 1894, denying tbe plaintiff’s motion for a temporary injunction.

      P. H. MoOcurren and Isaao H. Maynard, for the appellant.

      J. Newton Fiero, for the respondent.
   Matham, P. J.:

The plaintiff bj his verified complaint alleges that he is the owner of lands under water in the Hudson river, which he therein describes by metes and bounds, and charges that before the commencement of the action defendant wrongfully and forcibly entered upon such land under water, and then and there commenced dredging and digging upon said lands, and deposited earth dredged and dug upon a portion of the same, and on information and belief charges that the defendant is about to continue dredging and digging and depositing the earth dredged and dug upon the said lands of the plaintiff to his damage.

The complaint asks as relief a perpetual injunction restraining the defendant from dredging, digging and depositing earth upon his said land and for damages.

The application for a temporary injunction is also supported by the affidavit of the plaintiff substantially reiterating the charges in the complaint, and also by letters patent of the State of New York issued upon the resolution of the Commissioners of the Land Office, granting to the plaintiff and others the lands under water as described in the complaint.

The answer of the defendant admits the plaintiff’s title to the locus in quo as described in the plaintiff’s complaint, but denies that the defendant entered upon the lands so described and dredged and dug up the same, or that the defendant has deposited earth upon the same, or is about to do so, as charged in the complaint, and in support of such denials introduces affidavits and surveys of maps tending to show that the dredging and depositing of earth complained of was not upon the plaintiff’s land under water described in the plaintiff’s complaint and patent, but was upon other lands contiguous to the lands of the plaintiff.

Upon the complaint, answer, affidavits and other papers presented to the Special Term, the court refused to continue the temporary injunction, and from that order the plaintiff appeals.

The real controversy, therefore, between the parties is as to whether the land under water, which the defendant admits he is digging and depositing upon, is upon tbe lands described in tbe plaintiffs complaint, wliicb tbe defendant admits belong to tbe plaintiff.

To determine tbat tbe court must accurately determine tbe actual location of tbe locus in quo. Tbat tbe plaintiff lias title to land under water at about tbe point in controversy is a conceded fact, and wbetber tbe defendant is a trespasser upon tbat land depends upon tbe location of tbat grant.

Tbe exact location of tbe plaintiff’s premises under water does not seem to be definitely fixed by tbe. evidence on tbis motion. While tbe complaint alleges tbat tbe land upon wliicb tbe defendant is depositing bis dredged material is on tbe plaintiff’s land under water, entry upon which is denied by tbe defendant’s answer, tbe evidence of tbe defendant’s engineer and surveyor, Melius, and tbe map made by him, leaves tbe location in doubt, making three distinct locations, each to depend upon tbe starting point or landmarks mentioned in the grant, but, by adopting any one, a different location is established from tbat made by adopting either of tbe others. It is, therefore, impossible definitely to determine wbetber tbe defendant’s answer and proof does in fact deny tbe whole equities of the plaintiff’s bill. Tbat being so, the general rule tbat an injunction will not ordinarily be granted where tbe whole equities of tbe plaintiff’s bill are denied, does not absolutely control. It is only where tbe whole equities of tbe bill are positively denied under oath tbat an injunction will be dissolved on tbat ground. (Schermerhorn v. Merrill, 1 Barb. 514, and cases there cited.)

Tbe location being in doubt, tbe question whether or not the trespass was upon tbe plaintiff’s land is also in doubt, and tbe allegation in the complaint cannot be deemed to be positively denied under oath. It is only when upon tbe papers used at Special Term it is apparent tbat tbe whole equity of tbe plaintiff is denied tbat it is usual to dissolve an injunction (Knox v. McDonald, 25 Hun, 270), and even tbis rule is not of universal application; but has some well-established exceptions calculated to guard tbe right of parties from injury pending tbe litigation.

But in order to obtain tbis exercise of extraordinary power in bis favor by tbe court before a trial, it must appear tbat the plaintiff, upon tbe facts before the court, will, if tbe injunction is not granted, suffer irreparable injury, which cannot ordinarily be compensated in an action at law.

The complaint in this action does not charge that the alleged trespass will produce such irreparable injury to the plaintiff’s premises, and as the learned judge at Special Term put his decision upon the authority of Knox v. McDonald (25 Hun, 270, 271); Schemerhorn v. Wilcox (1 Barb. 511); Central Cross Town R. R. Co. v. Railroad (49 How. Pr. 233), he must have determined either that the plaintiff had an adequate remedy at law for the alleged injury, or that the whole equities of the plaintiff’s bill were denied by the answering papers of the defendant, or that too much doubt existed as to the plaintiff’s right to justify the granting of a temporary injunction in this case.

As the granting of an injunction pendente lite rests in the sound discretion of the court of original jurisdiction, which should only be reviewed and reversed by the General Term for an error in the exercise of that discretion (Hart v. R. R. Co., 48 N. Y. St. Repr. 801), we see no good reason for interfering with the decision of the Special Term in the exercise of that discretion in this case. (Hudson River Tel. Co. v. W. T. & R. R. Co., 121 N. Y. 397-401; 31 N. Y. St. Repr. 524; Hatch v. W. U. Tel. Co., 93 N. Y. 640.) As the complaint in this action does not raise the question of the right of the defendant to obstruct the free access of the plaintiff to his premises in the navigable waters of the Hudson river, we do not see how that question can be considered here.

Order of Special Term affirmed, with ten dollars costs and printing disbursements.

PutNAM, J., concurred; Hbeeiok,' J., not acting.

Order affirmed, with ten dollars costs and printing and other disbursements.


source: Caselaw Access Project

author: Pee Cueiam :

license: Public Domain

text:
    George Hempenstall, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.

      Negligence —damages for personal injwies — questions of negligence and damages are for the jury.

    Upon the trial of an action brought to recover damages resulting from personal injuries, it appeared that the plaintiff, after purchasing a ticket for passage on the defendant’s railroad, waited for his train going east, which, at that point, according to schedule time, was past due. While waiting, a fast train, eastward hound, passed the station, which the plaintiff supposed was his train, and he passed from the depot over some of the tracks of the defendant’s road for the purpose of boarding it. The fast train passed without stopping, and the plaintiff, to avoid a westward-bound train which at that time was approaching, stepped back and was hit and injured by a freight car which was in process of being switched, and was moving slowly, either from gravity or its own momentum, detached from any engine.
    Meld, that under the circumstances the court could not say, as a matter of law, either that the plaintiff was guilty of contributory negligence, or that the defendant was free from negligence;
    That such questions were properly submitted to the jury for its determination. The jury, upon the trial of an action brought to recover damages for personal injuries by reason of the alleged negligence of a defendant, is the tribunal under the law to assess the damages sustained, and it is only when their verdict is so excessive and disproportionate to the injury that it evinces passion, prejudice or partiality, that the court should interfere to reduce it.
    Appeal by tbe defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Montgomery on the 22d day of January, 1894, upon the verdict of a jury for $1,850, rendered after a trial at the Montgomery Circuit, and also from an order entered in said clerk’s office on the 20th day of January, 1894, denying the defendant’s motion for a new trial made upon the minutes

      G. D. Prescott, for the appellant.

      L. F. Fish and P. B. Fish, for the respondent.
   Pee Cueiam :

The plaintiff had purchased a ticket for passage on the defendant’s railroad from Ponda to Albany, and was waiting at the former place for an east-bound train which was past due at that point according to schedule time.- While there, a fast train, eastward bound, passed the station without stopping, which the plaintiff supposed was his train, and he passed from the depot over some of the tracks of defendant’s road for the purpose of boarding it.

As that train passed without stopping, the plaintiff, as would seem, to avoid a west-bound- train which at that time was approaching, stepped back and was hit by a freight car which was in process of being switched, and was moving slowly, either from gravity or its own momentum, detached from any engine, and was injured.

It is claimed by the plaintiff that the defendant was, as to the passengers traveling on its trains, to whom it owed a high degree of diligence, negligent in “ kicking ” a freight car, detached from the engine, in front of its passenger depot, while passengers were waiting there for a past-due train.

It is claimed by the defendant that the plaintiff did -not show his freedom from contributory negligence in exposing himself in the daytime to be hit by a freight car, and that if he had looked and listened he could have seen it and escaped injury.

Under the circumstances of this case we do not think this court can say, as matter of law, that the defendant was free from contributory negligence. Nor can we say, as matter of lavr, that the plaintiff was guilty of contributory negligence. Under the circumstances of this case we think that it was a question for the jury whether, under the facts disclosed by the proof, the defendant was guilty of negligence which produced the injury; and it was also a question for them to determine whether the plaintiff had established his freedom from contributory negligence, and that the case was, therefore, properly submitted to the jury under a fair charge by the judge. It is insisted by the defendant that the damages given by the jury are excessive..

We think the damages are large, and larger, perhaps, than we would have awarded had we been called upon to assess them. But that is not the test to be applied by the appellate court in deter mining whether or not damages are excessive. The jury is the tribunal under the law to assess the damages in a case of this character, and it is only when their verdict is so excessive and disproportionate to the injury that it evinces passion, prejudice or partiality that the court may interfere to reduce it. We cannot say,' as matter of law, that the size of this verdict evinces any such improper passion or emotion on the part of the jury in this case.

The judgment must be affirmed, with costs.

Present- — -Mayham, P. J., Putnam and PIerrick, JJ.

Judgment affirmed, with costs.


author: Mayham, P. J.:

text:
    Robert S. Coleman, Respondent, v. Charles H. Pickett, Appellant, Impleaded with Another.

      A holding of real estate by consent of the owner — no title acquired, by lapse of time — waiter of the right to go to the jury.

    Where a person enters into the possession of real estate with the consent of the owner thereof, under an agreement that he will not erect any building on the land, his holding thereof is in subordination to the legal title of such owner, and cannot, therefore, ripen into a valid adverse possession by lapse of time.
    Where both the parties on the trial of an action take the position that the case must be disposed of by the court as a question of law; the defendant by a motion for a nonsuit and the plaintiff by asking the court to direct a verdict in his favor, each “waives his right to submit the case to the jury except upon specific disputed questions of fact, and the refusal of the court to submit the case to the jury, generally, after such motion and request, is not an error of which the defendant can complain on an appeal from a judgment directed against him.
    Herrick, J., dissenting.
    Apfeal by the defendant, Charles PI. Pickett, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Washington on the 31st day of January, 1894, upon the verdict of a jury rendered by direction of the court after atrial at the Washington Circuit before the court and a jury.

      D. J. Sullivan, for the appellant.

      I. II. North/wp and A. I). Arnold, for the respondent.
   Mayham, P. J.:

The action was brought to reform a deed and for the recovery of the possession of lands claimed to have been inserted in the deed by mistake.

The complaint alleged all the essential facts to entitle the plaintiff Po the relief demanded. The answer admitted many of the allegations of the complaint, and sets up as an affirmative defense adverse possession of the land in dispute.

From a careful examination of the uncontradicted evidence, we think the allegations of the complaint are established by the proof.

As to the affirmative defense of adverse possession, the undisputed evidence shows that the defendant and his grantor entered into possession with the permission and consent of the owner, under an agreement that he would not erect any building on the land. ITis holding was, therefore, clearly in subordination to the legal title of the plaintiff, and could not, therefore, ripen into a valid adverse possession by lapse of time.

We have examined the objections and exceptions taken by the defendant to the rulings of the trial court on the receipt and exclusion of evidence offered on the trial, and find no error for which this judgment should be reversed.

We have also examined the exceptions taken to findings of fact and conclusions of law by the learned court on.the final disposition of the action, and think them not well taken.

The facts were supported by the evidence, and the conclusion of law followed as the legal sequence of the facts found.

The parties on both sides having taken the position that the case must be disposed of by the court as a question of law, the defendant by motion for nonsuit, and the plaintiff by asking the court to direct a verdict for him, waived their right to submit the case to the jury except upon specific disputed questions of fact, and the refusal of the court to submit the case to the jury, generally, after such motion and request on the part of the defendant, was not error of which the defendant can complain on appeal.

In Mayer v. Dean et al. (115 N. Y. 556) it was held that when, after the close of the evidence, each party asks that a verdict be directed in his favor, and after the decision thereon the unsuccessful party asks that the case be sent to the jury, without stating any question of fact he desires submitted, a denial of the motion is not error.

We see no error in this case for which the judgment should be reversed.

The judgment must be affirmed, with costs.

Putnam, J., concurred in the result; Herrick, J., dissented.

Judgment affirmed, with costs.


text:
    Libbie E. Button, Appellant, v. Charles M. Hibbard, Respondent.

      Contract of marriage — consideration of illicit intercourse renders it mid — facts from which the jury may infer the contract.

    A promise oí marriage based wholly upon the consideration of illicit and adulterous intercourse is void on account of the immorality of the consideration.
    A contract of marriage may be found by the jury, in an action brought to recover damages for the breach thereof, from the familiar and affectionate intercoursé which may exist between marriageable persons of opposite sex, constant -and devoted attention to each other, fondness for each other’s society, endearing, epithets, caresses, rides and walks with each other, presents, familiar talk upon the subject of intermarriage, plans for enjoyment, or of future life after marriage, exchanges of presents, and an innumerable variety of acts and conduct towards each other which evince an attachment and regard.
    No form of language is necessary to constitute a contract of marriage. If the conduct and declarations of the parties clearly indicate that they regard themselves as engaged, it is not material by what means they have arrived at that state, and what the parties to an alleged contract of marriage intended by their acts and declarations, and what is the correct translation of them is for the jury and not for the court to determine. They are questions of fact and not of law.
    Appeal by the plaintiff, Libbie E. Button, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Montgomery on the 14th day of May, 1894, upon the decision of the court, rendered at the Montgomery Circuit, dismissing the plaintiff’s complaint, after a trial at the Montgomery Circuit before the court and a jury.

      Huston c& Herrick, for the appellant.

      Barnum Brothers, for the respondent.
   Mayham, P. J.:

The first count of the plaintiff’s complaint alleged, in substance, that she was an unmarried female, and that the plaintiff and defendant, about the 24th day of June, 1891, made and entered into a mutual promise of marriage.

The second count alleged that the plaintiff, relying upon such contract, had remained single and unmarried, and was at all times ready and willing to perform the contract on her part.

The third count alleged the breach of the contract on the part of the defendant by his marrying another woman on or about the 30th day of November, 1892.

The fourth count alleged that, relying upon the defendant’s repeated promises of marriage, she yielded to and was seduced by the defendant, whereby she became pregnant and sick with child, to which she gave birth on the 18th of June, 1892, and for all of which she claimed damages.

The answer in substance denies all the allegations of the complaint except that of his marriage. The evidence upon the trial tends to show that for a considerable period of time the defendant paid markéd attentions to the plaintiff, escorted her to church and prayer meetings, and on various occasions kissed and caressed her, and frequently told her that he hoped she would think enough of him to marry him, proposed to purchase for her her wedding dress and received from her samples of dress goods, such as she" thought suitable for a wedding garment, and carried it with him to town with the avowed purpose of purchasing goods for her wedding dress, and by his conduct towards her and conversations with her evidenced emotions of affection and regard from which a jury might, within the rules of law governing this class of contracts, have found a mutual agreement of marriage. '

These acts of attention and evidences of affection and regard occurred at the defendant’s while she was at work for him, and also at the house of the plaintiff’s father, and also quite often when the defendant took her riding. It also appeared that the defendant had given plaintiff presents, and told her that when they were married they would go to Niagara.

On the cross-examination of the plaintiff she testified that, at the time of her seduction, the defendant proposed illicit intercourse with her and she objected. He told her it was all right. She replied that he might change his mind; he said he would not; that he would marry her if she would be seduced by him. Upon this testimony the learned trial judge, at the conclusion of the plaintiff’s evidence, dismissed the complaint on the -ground that the immoral consideration shown by this evidence would not support the promise. It is doubtless true that a promise of marriage, based wholly upon the consideration of illicit and adulterous intercourse, is void on account of the immorality of the consideration. (Steinfeld v. Levey, 16 Abb. Pr. [N. S.] 26; Lewis v. Goetschius, 20 N. Y. Wkly. Dig. 140.)

But we think the learned judge fell into error in assuming that that transaction was the only evidence in the case from which a promise of marriage could have been legally found by the jury. The law is- well settled that a contract of marriage may be found by a jury from the familiar and affectionate intercourse which may exist between marriageable persons of opposite sex. Constant and devoted attention to each other, fondness for each other’s society, endearing epithets, caresses, rides and walks with each other, presents, familiar talk upon subject of intermarriage, plans for enjoyment, or of future life after marriage, exchanges of presents, and an innumerable variety of acts and conduct toward each other evincing attachment and regard, from which a jury are at liberty to presume a contract of marriage.

In Homan v. Earle (53 N. Y. 267) Church, Ch. J., in delivering the opinion of the court, while discussing the correctness of the charge of a trial judge to a jury in this class of cases, says: As matter of law the learned judge was clearly right in holding that no formal language is necessary to constitute the contract of marriage. If the conduct and declarations of the parties clearly indicate that they regard themselves as engaged, it is not material by what means they have arrived at that state.” And at page 277 of the case the learned judge adds, “ AVhat the parties intended by these acts and declarations, what is the correct translation of them, is for a jury and not a court. It is a question of fact and not of law.”

This language of the learned judge is but a reiteration of a rule long settled in this class of cases. In the case at bar it was for the jury to interpret and construe the facts detailed by the evidence, and from that determine outside of the immoral act upon which the learned judge dismissed the complaint that the minds of the parties had met upon a mutual contract of marriage as evidenced by their conduct and declarations. And it was, we think, error for the judge to take that question from them.

The judgment must be reversed and a new trial ordered, costs to abide the event,

Putnam and Herrick, JJ., concurred.

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


text:
    Frederick S. Harlow, Appellant, v. Hiram La Brum, Respondent.

      Partnership agreement procured by fraud — void ab initio — answer alleging that the agreement was procured by fraud — proof competent thereunder — effect of a false representation as to cost of chattels — relations of co-pa/rtners — a deceived partner relieved by a court of equity,
    Where a contract or claim upon which a plaintiff seeks to recover had its inception in fraud practiced upon the defendant, which formed the inducement for the creation of the liability charged in the complaint, such fraud'vitiates the contract as between the parties affected by it.
    If a contract creating a co-partnership had its inception in fraud, it is as between the parties to it void ab initio, and its revision will relate back to the time of its making.
    Where the answer, in an action brought to dissolve ,a partnership and for an accounting, does not deny the execution of the articles of co-partnership alleged in the complaint, but sets up the affirmative defense, that the co-partnership articles are void for fraud, the failure of the defendant to deny the execution of the articles of co-partnership does not put him in a position where he cannot set up in his answer matter which affects the validity of the contract, and under such answer it is clearly competent for him to attack the articles of co-partnership for fraud.
    An action will not ordinarily lie against a person on account of his false representation as to the value of property, by which another has been induced to act, as in such case the party to" whom the representation has been made had access to the open market to determine the value of the property and could exercise his own judgment as to its value; but the rule is otherwise where a fraudulent representation has been made by a vendor as to the cost of a chattel which is the subject of a sale.
    The relation of partners is one implying the highest degree of mutual confidence. By such relation each becomes the custodian not only of the property but to a great degree of the character and business standing of the other, and the court in an equitable action will not uphold a contract between partners consummated by fraud, nor, as between the deceiver and deceived, bind the property and character of the latter, nor will the court require the relation to be continued, until the injured and deceived party has been subjected to actual loss, which he may prove, in dollars and cents.
    When a party appeals to the court for relief, and establishes the fraud, he should be relieved from the hazard of a business combination into which he has been inveigled by fraud and misrepresentation.
    Appeal by tbe plaintiff, Frederick S. Harlow, from a judgment of tbe Supreme Court in favor of tbe defendant, entered in tbe office of the clerk of -the county of Saratoga on tbe 3d day of June, 1894, upon the decision, of the court, rendered at the Saratoga Circuit, after the jury, failing to agree, had been discharged and the case had been taken for decision by the court, adjudging an agreement of co-partnership void and appointing a receiver, with notice of an intention to bring up for review upon such appeal the said judgment, order and decision.

      Jesse Stiles and James W. Yerbeóle, for the appellant.

      Edgar T. Brackett, for the respondent.
   Mayham, P. J.:

The plaintiff brings this action for a dissolution of what he alleges to be a valid existing co-partnership between himself and the defendant, and for an accounting as partners. The complaint sets out written articles of co-partnership.

The answer does not' deny the making of the written articles of co-partnership, but impliedly admits the same, and sets up as a defense that the defendant was induced to enter into such co-partnership by the fraudulent representations of the plaintiff that a stock of merchandise which he put into such co-partnership cost the sum of $1,890.05, an undivided half of which would belong to the defendant under such articles of co-partnership, and against which defendant put in the sum of'$850 in cash and his notes to the plaintiff of $1,150, and alleges that the merchandise in fact cost the plaintiff but the sum of $1,134, which fact the plaintiff well knew at the time of making such representations, and of which defendant was wholly ignorant. The answer also alleges that under such supposed partnership he worked from the 18th day of October, 1893, to the 24th day of March, 1894, for which his services were worth twelve dollars per week and for which he had received but six dollars a week, and that the fraud was not known to or discovered by defendant until the commencement of this action.

The defendant, in his answer, also demands that it be adjudged that there never existed any partnership between the plaintiff and defendant; that the articles be vacated and set aside; that the notes or due bills be canceled and set aside, and demands the recovery of the money paid by defendant under such fraudulent agreement, and payment of balance due for the services of the defendant.

The trial judge finds upon, we think, sufficient evidence the following facts:

1. “ That on or about the 18th day of October, 1893, the defendant entered into a written agreement of co-partnership with the plaintiff to carry on a mercantile business at Saratoga Springs, N. Y., and purchased from the plaintiff an undivided one-half of a stock of goods'then owned by the plaintiff for the sum of $2,000, $800 of which he then or thereafter paid in cash, and for the balance of which the plaintiff holds his note, or due bill, dated October, 1893.”

2. “ That to induce the defendant to enter into such co-partnership agreement with the plaintiff, and to purchase from the plaintiff the said undivided one-half of said stock of goods then owned by the plaintiff, the plaintiff represented to the defendant that he, the plaintiff, had paid for the Mabbett stock, so-called, which formed a portion of the stock then owned by the plaintiff (one-half of which he sold to the defendant), the sum of $1,890.05.”

3. “ That such representation was false, and was known by the plaintiff to be so when he made the same, and he had not, in fact, paid said sum of $1,890.05 for said Mabbett stock, nor any other or greater sum than $1,136.80, and said statement was made by the plaintiff to the defendant to induce him, the defendant, to enter into said co-partnership agreement to buy one undivided one-half of said stock.”

4. “ That in ascertaining the cost of the stock then on hand owned by the plaintiff, and an undivided one-lialf of which he proposed to and did subsequently sell to the defendant, the parties took a list of bills of goods purchased by the plaintiff at the cost price thereof from the time he commenced business, and from the aggregate of such cost deducted the cost price of the goods sold by him during the time he had so been in business, the difference being the cost of the goods then in stock, of which the defendant thus purchased an undivided one-half.”

5. “ That the defendant relied on said representation of the plaintiff and believed the same, and without the same he would not have entered into said co-partnership agreement, or purchased the undivided one-half of said stock of goods of the plaintiff, as he did do.”

6. That the defendant did not discover said fraud, thus practiced upon him by the plaintiff, until after the commencement of this action.”

7. That, before discovering the fraud thus practiced on him by the plaintiff, the defendant rendered work, labor and services in said store, thus operated by said co-partnership, for twenty-two weeks, which services were worth $12.00 per week, and that the defendant admits receiving on account of said services the sum of $6 per week ($132 in all), apparently leaving a balance thereon of $132.”

8. It appeared upon the trial that a receiver of the property of the firm has been appointed in this action, and that he has sold the tangible property thereof. No evidence was given tending to show the amount of the receipts from the business retained by the defendant, and thereupon it is found that said amount retained by him does not exceed the value of his services as last above found.”

9. The allegations of fact stated in the complaint are true, except as qualified by the above findings.”

And, as conclusions of law, the court finds:

1. That (owing to said false representation thus made by the plaintiff to the defendant, and the fraud thus practiced by the plaintiff upon him, the defendant) said co-partnership agreement was and is voidable, and the defendant is entitled to have the same set aside and annulled.”

2. “ That, owing to such fraud and false representation of the plaintiff, the agreement by which the defendant bought and the plaintiff sold such undivided one-half of such stock of goods, was and is voidable, and the defendant is entitled to have the same set aside and annulled and to be restored to whatever he parted with thereunder.”

3. That the defendant is entitled to judgment against the plaintiff herein:

“ (a) Declaring said partnership agreement and said agreement of purchase of such undivided one-half of said stock void.

“ (5) Directing the receiver herein, after first paying any debts outstanding and unpaid that wore contracted during the existence of said co-partnership, to pay, out of any funds in his hands, to the defendant the sum of $850 (the sum thus paid by him to the plaintiff], with interest on $750 thereof from October 18, 1893, and on $100 thereof from December 12, 1893 (amounting to the sum of $879.25).

(p) Directing the plaintiff to deliver to the defendant the due bill of the defendant, dated October 18, 1893, and now held by the plaintiff.

7 (d) For the costs of this action.”

But it is insisted by the learned counsel for the plaintiff, that, as the allegations of co-partnership as stated in the complaint are not denied by the answer, they must, under the provisions of section 522 of the Code of Civil Procedure, be taken as true, and in support of that contention he cites Fleischman v. Stern (90 N. Y. 110). But it will be seen, by an examination of that authority and all' the other cases cited in support of that contention, that they do not relate to a case where the contract or claim upon which the plaintiff seeks to recover had its inception in fraud practiced upon the defendant, which formed the inducement for the creation of this liability charged in the complaint. That fraud vitiates all contracts, as between the parties affected by it, is a doctrine so elementary as not to require the citation of authorities.

If the contract creating the co-partnership had its inception in fraud, it was, as between the parties to it, void db i/nitio, and its revision will relate back to the time of making. The answer, therefore, while it did not deny the execution of the articles of co-partnership, sets úp the affirmative defense that they were void for fraud..

The making of the articles of co-partnership could not be truthfully denied in the answer, and a failure to deny their execution did not put' the defendant, under the authority of Beard v. Tilghman (66 Hun, 12), in a position where he could not set up in his answer matter which went to the validity of the contract.

It was, therefore, clearly competent under the defendant’s answer to attack the articles of co-partnership for fraud.

In 2 Bates Partnership (§ 595) the effect of fraud upon the validity of a partnership is stated as follows: “ A person induced to enter into a partnership by fraudulent misrepresentations, although he may have a dissolution on this ground, may also obtain a decree, rescinding or canceling the partnership agreement db initio, even though the misrepresentations are not such as would entitle him to an action for deceit. He can also have an'action for deceit against the guilty partners. In such cases the chancellor will administer complete relief by ordering repayment of all sums advanced or expended by the complainant, and compensation and indemnity. This is not giving damages, but is a proper consequence of rescinding the contract, and the complainant has a lien on the assets for what he has paid in.”

It is also urged by the learned counsel for the plaintiff that as there was no proof that the stocks of goods were in fact worth less than $1,890.05, that, therefore, the defendant had not by the proof suffered any loss, and that he was not, therefore, entitled to any relief.

The representation in this -case was not a mere representation by the plaintiff of the value of the property, which at most could but be an expression of his opinion, and for which no action would ordinarily lie. (Chrysler v. Canady, 90 N. Y. 272; Schumaker v. Mather, 133 id. 590.)

In such cases the party purchasing, or to whom the representation is made, has access to the open market to determine the value, and may exercise his own judgment as to the value.

We think the rules are different where fraudulent representation is made by the vendor as to the cost of a chattel. In Fairchild v. McMahon (139 N. Y. 290) O’Brien, L, sharply recognizes the existence of such distinction, and in discussing this question of a distinction between an opinion by the vendor and false representa^ tion as to its cost, says : “ But the question here is not one arising out of a representation as to value. The representation was with respect to a fact which might, in the ordinary course of business, influence the action and control the judgment of the purchaser, namely, the price paid for the property about to be sold by the vendor * * * and so we think that a false statement with respect to' the price paid under such circumstances, which is intended to influence the purchaser, and does influence him, constitutes a sufficient basis for the finding of fraud,” citing in support of that contention, Sandford v. Handy (23 Wend. 260) ; Van Epps v. Harrison (5 Hill, 63) ; Smith v. Countryman (30 N. Y. 655); Hammond v. Pennock (61 id. 151); Goldenbergh v. Hoffman (69 id. 326).

Nór can we agree with the contention of the learned counsel for the plaintiff, that, as no pecuniary damage was proved by the defendant, he is not entitled to any relief in this action.

The relation of partners is one implying the highest degree of mutual confidence. By such relation each becomes the custodian, not only of the property, but to a great degree of the character and business standing of the other. For the court, therefore, in an equitable action, to uphold a contract consummated by fraud, and thus, as between the deceiver and the deceived, to bind the property and character of the latter, would seem to be not only inequitable, but oppressive. Nor should the relation be continued until the injured and deceived party has been subjected to actual loss, which he may prove in dollars and cents.

When he appeals to the court for relief and establishes the fraud, he should be relieved from the hazard of a business combination into which he has been inveigled by fraud and misrepresentation.

We think, therefore, that the trial court was right in declaring this contract void and inoperative from its inception, and by the judgment of the court restoring, as far as possible, the statu quo of these parties.

We have carefully examined all the exceptions taken by the learned counsel for the plaintiff to the rulings, findings, refusals to find and determinations of the trial judge, and find no error for which this judgment should be reversed.

Putnam and Heerick, JJ., concurred.

Judgment affirmed, with costs.


author: Putnam, J.:

text:
    The People of the State of New York ex rel. Stanley H. Bevins, Respondent, v. The Board of Supervisors of the County of Warren, New York, Appellant.

      Highway commissioner — employment by him of an attorney in laying out a road ■ compensation of the attorney — chapter 568 of 1890.
    A highway commissioner cannot bind a town except under a power ^ expressly conferred by statute.
    There is no statutory provision which expressly or impliedly confers upon the highway commissioner of the town of Chester, Warren county, power to-employ an attorney or counsel upon the credit of the town in a proceeding to lay out a road under the provisions of article 4 of chapter 568 of the Laws of 1890, and such an employment of an attorney by such highway commissioner, although it may create a legal claim against him, creates none against such town.

      The words, “the costs thereof,” as used in section 92 of article 4 of chapter 568 of the Laws of 1890, do not and cannot by any fair construction of the statute be deemed to apply to a bill for legal services rendered by an attorney employed by the highway commissioner, and it cannot be maintained that the Legislature intended by the word “costs”’as used therein to embrace claims for attorney’s fees for which a highway commissioner was responsible, and a town was not, at the time of the passage of such act.
    The costs referred to in such section are costs which may be allowed to one of the parties under the provisions of section 152 of such act, and probably it should be deemed to apply to the fees and expenses of the commissioners therein provided for.
    The word " costs,” as used in section 92 of such act, does not in terms apply to a personal debt incurred by a highway commissioner, nor can it be made to so apply by any fair construction of the statute.
    Article 4 of chapter 568 of the Laws of 1890 does not authorize an application to lay out a highway to be made by a highway commissioner as such. The statute provides that he may appear, after the appointment of commissioners, and he may at that time oppose or aid in the laying out of the road in the same way as the applicant for the highway and other parties in interest may.

      Semble, that at that time the highway commissioner probably could, if proper and necessary, employ counsel to aid him in the matter of laying out the road and assessing the damages; but the counsel would be employed by him and not by the town, and such counsel must collect his bill for services from the highway commissioner; that the highway commissioner thereafter could present a claim for the amount so paid by him to the town as a necessary expense incurred by him in the discharge of the duties of his office, and if the bill were fair and properly incurred the town auditors might allow it.
    Appeal by tbe defendant, The Board of Supervisors of the County of 'Warren, New York, from an order of the Supreme Court, made at the Montgomery Special Term and entered in the office of the clerk, of the county of Warren on the 20th day of January, 1894, directing that a peremptory writ of mandamus issue out of the Supreme Court directed to the board of supervisors of Warren county, directing them to convene and audit the claim of the relator according to law.

      S. dk L. M. Brown, for the appellant.

      Stanley JB Bevins, for the respondent.
   Putnam, J.:

We are unable to find any statutory provision which conferred upon the highway commissioner of the town of Chester power to employ an attorney and counsel on its credit, in a proceeding to lay out a road under the provisions of article 4, chapter 568, Laws of 1890. Oertainly no such power is expressly given, and we think none can be implied. A highway commissioner cannot bind the town except under a power expressly conferred by statute. In People ex rel. Everett and Others v. Board of Supervisors (93 N. Y. 397-401) the court says: “The relations existing between a town and its commissioners of highways were quite fully and explicitly defined in the opinion of Judge Andrews in People ex rel. Van Keuren v. Board of Town Auditors (74 N. Y. 310). It was there held that such commissioners were in no sense the agents of the town in the performance of their official duties.

“ While acting in that capacity, under the powers conferred upon them by statute, they proceed independently of any control or direction on the part of the town, and owe it no duty or obligation^ except to disburse the moneys with which they are supplied by the town in good faith and according to their best judgment.

“ They have no general power or authority to bind the town by their contracts or undertakings, and are individually responsible alone to those with whom they contract, if any responsibility is thereby created.”

Hence, the employment of the relator by the highway commissioner of the town of Chester may have created a legal claim against him, but none against the town.

It is claimed, however, by the learned counsel for the relator that sections,92 and 93 in article 4 {supra) made it obligatory on the board of supervisors to audit and allow the claim of the relator for legal services performed by him on the retainer of the highway commissioner. Section 92 provides as follows : “ In all cases of assessments of damages by commissioners appointed by the court, the costs thereof shall be paid by the town except when reassessment of damages shall be had, on the application of the party for whom the damages were assessed, and such damages shall not be increased on such reassessment; the costs shall be paid by the party applying for the reassessment.”

Perhaps the only answer that need be given to the above position of the respondent is that the words “ the costs thereof” — that is, the costs of the assessment of damages — do not, and cannot, by any fair construction of the statute, be deemed to apply to a bill for legal services rendered by an attorney employed by the highway commissioner. When the act in question was passed the town was not in any way liable for attorney’s services contracted by a highway commissioner in the matter of laying out a road. The claim for such services was one against the officer. It cannot be maintained that the Legislature intended by the word costs ” in section 92 (supra) to embrace claims for attorney’s fees for which the highway commissioner was responsible, and the town was not, when the .act was passed. Had it been intended'by the act to create a new liability on the part of towns, and to make them responsible for bills contracted by highway commissioners, the statute would have indicated such intention by some provision therein.

Section 92 (supra) provides that commissioners appointed under article 4 shall be entitled to six dollars per day and expenses. Section 152 of the act provides that “ costs of a motion to confirm, vacate or modify, the report of commissioners appointed by the court to lay out, alter or discontinue a highway, may be allowed, in the discretion of the court, not exceeding fifty dollars. Costs of any other motion in a proceeding in a court of record, authorized by this chapter, may be allowed, in the discretion of the court, not exceeding ten dollars.”

We see no reason to doubt that costs,” referred to in section 92, are costs which may be allowed to one of the parties under the provision of section 152. Probably it should also be deemed to apply to the fees and expenses of the commissioners.

The word “ costs,” as used in section 92, however, does not in terms apply to a personal debt incurred by the highway commissioner, nor can it be made to so apply by any fair construction of the statute. It would be unfortunate for a town if the highway commissioner could contract bills on its credit. This case is an illustration of what the result would be if the highway commissioner possessed that power. The claim of the relator is $146, and it appears by the papers before Rs that there is outstanding another bill of another attorney for counsel fees in the same matter for $206 — in all $352.

Article 4 (supra) does not authorize an application to lay' out a highway to be made by a highway commissioner as such. The statute provides that he may appear after the appointment of commissioners, and doubtless he can at that time oppose or aid in the laying out of the road, in the same way as the applicant for the ■highway and others interested may. At that time the highway commissioner could, if proper and necessary, employ counsel to aid him in the matter of laying out the road and assessing damages. But the counsel would be employed by him and not by the town, and such counsel must collect his bill for services from the highway commissioner. The latter afterwards could present a claim for the amount so paid by him to the town as a necessary expense incurred by him in the discharge of the duties of his office; and if the bill w,ere fair and properly incurred, the town auditors probably would allow it.

The view we have thus taken of the case will render it unnecessary to consider the position taken by appellant, that there was in fact no assessment of damages in this case, and, hence, under the provisions of sections 92, 93 (supra), the supervisors had no duty to perform in relation to the alleged claim of relator.

The clerk of the board of supervisors made an affidavit that the bill of relator when presented was considered and examined on its merits, and the board of supervisors decided that the claim was not a valid one against the town; that the latter was not legally liable to pay it or any part thereof, and, therefore, disallowed the bill. This affidavit was not controverted by relator, and, hence, must be taken as true. (People ex rel. Lawrence v. Supervisors, 73 N. Y. 173.)

The supervisors, therefore, rejected the bill because it was not a valid claim against the town. If this decision of the supervisors was erroneous, appellant urges that relator’s remedy was by certiorari and not mandamus. Grover, J., in Howland v. Eldredge (43 N. Y. 457, 461) says : This is the universal rule in respect to all subordinate courts and tribunals clothed with the exercise of judgment or discretion. They may by mandamus be compelled to proceed and determine the matter, but cannot be compelled to decide in any particular way. If they could, it would no longer be their judgment or discretion, but that of the court awarding the writ.”

The relator’s bill was presented to the board of supervisors. They considered and acted upon it. Their action was judicial. They decided that the bill was not a legal or proper claim against the town. If they erred, there are authorities holding that the proper way to correct the error was by certiorari. (People ex rel. Myers v. Barnes, 44 Hun, 574; affd., 114 N. Y. 317; People ex rel. Osborn v. Gilon, 24 Abb. N. C. 125; People ex rel. Woodward v. Rosendale, 76 Hun, 103.)

Having concluded, however, for the reasons above stated, that the order from which the appeal is taken cannot be sustained, we do not pass upon this position of appellant.

The order must be reversed and motion denied, with fifty dollars costs and disbursements.

Mayham, P. J., and Herrick, J., concurred.

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


author: Putnam, J. :

text:
    The People of the State of New York, v. Troy Steel and Iron Company. Amelia Lortie, as Administratrix, etc., of Jeremiah T. Lortie, Deceased, Respondent, v. Troy Steel and Iron Company, Appellant.

      Receivers of a corporation — appeal taken in the name of the corporation — judgment entered against a corporation, after the appointment of a receiver— after its dissolution —■ continuance of actions — actions for negligence do not abate on the dissolution of a corporate defendant.

    The receivers of a corporatioü can take an appeal from an order, made in an action pending against the corporation at the time of their appointment, either in their own names or in the name of the corporation, and such an appeal taken by them in the name of the corporation is considered the appeal of the receivers in the name of the corporation.
    A judgment appointing a receiver in a sequestration action, brought by a creditor against a corporation under the provisions of section 1784 of the Code of Civil Procedure, does not dissolve the corporation or prevent the prosecution of actions against it.
    A judgment for the dissolution of a corporation and the appointment of a receiver, in an action brought by the People of the State under the provisions of section 1785 of the Code of Civil Procedure, ordinarily has the effect of preventing the maintenance of an action against the corporation, and if actions are pending at the time of the rendition of such judgment, they cannot be con tinued unless by order of the court by which the judgment was rendered.
    Under the provisions of sections 755 and 756 of the Code of Civil Procedure the same power is now vested in the Supreme Court to continue actions pending against a corporation, when it is dissolved under the provisions of section 1785 of the Code of Civil Procedure, as was conferred upon the Court of Chancery by chapter 295 of the Laws of 1832.
    Under the provisions of section 755 of the Code of Civil Procedure, actions that do not abate against a corporation upon its dissolution are those where the right of action survives or continues.
    The cause of action given by section 1902 of the Code of Civil Procedure to the representatives of a decedent, whose death was caused by the negligence of another, does not abate, if brought against a corporation, upon its dissolution and the appointment of a receiver thereof, and the court should direct, upon a proper application, the continuance of the same against the receiver of the corporation. >
    Appeal by tlie defendant, tlie Troy Steel and Iron Company, from an order of the Supreme Court, made at the Albany Sj>ecial Term and entered in the office of tlie clerks of tlie counties of Albany and Rensselaer on the 16tli day of April, 1894, modifying the judgment in the first above-entitled action, entered on the 16th day of August, 1893, so as to permit the continuance of the second-named action against the receivers of the Troy Steel and Iron Company, and substituting such receivers as the defendants in such action.

      Thomas 8.. Fagam, Ed/wa/rd W. Douglas and Frank 8. Black, for the appellant.

      Ooum/t/ryman <£> DuBois, for the respondent.
   Putnam, J. :

. This •action was brought in the month of March, 1893, by the plaintiff, as administratrix, to recover damages for the death of her husband, which, the complaint alleged, was caused by defendant’s negligence.

The defendant, a corporation, was dissolved by.a judgment of the Supreme Court in August, 1893, in an action brought by the Attorney-General in the name of the People of the State, and receivers appointed. On plaintiff’s motion, in March, 1894, an order was made at Special Term continuing the action against the receivers, and from such order this appeal is> taken.

It is urged by tbe respondent' that as tbe receivers have not appealed and tbe corporation is “ defunct,” tbe appeal taken in its name should be dismissed; that, in fact, there is no appeal now-pending ; we think plaintiff’s position'is not well taken.

The receivers could take an appeal either in their own name or in that of the corporation, and hence the appeal under consideration should be deemed that of the receivers in the name of the corporation. (Talmage v. Pell, 9 Paige, 410.)

It is held that a judgment in a sequestration action brought by a creditor against a corporation, under the provisions of section 1784 of the Code of Civil Procedure, appointing a receiver, does not dissolve the corporation or prevent the prosecution of actions against it, (Del Valle v. Navarro, 21 Abb. N. C. 136 ; Auburn Button Co. v. Sylvester, 68 Hun, 401.)

A judgment, however, for the dissolution of a corporation and the appointment of a receiver in an action by the People of the State, brought under the provisions of section 1785 of the Code of Civil Procedure, ordinarily has the effect of preventing the maintenance of an action against the corporation ; and if actions are pending at the time of the rendition of such judgment they cannot be continued unless by order of the court by whom the judgment was rendered. (Sturges v. Vanderbilt, 73 N. Y. 384-388.)

After such a judgment against a corporation, in the language of Field, J., in National Bank v. Golby (21 Wall. 609-615): “Its existence as a legal entity was thereupon ended; it was then a defunct institution, and judgment could no more be rendered against it in a suit previously commenced than judgment could be rendered against a dead man dying pendente lite. This is. the rule with respect to all corporations whose chartered existence has come to an end, either by lapse of time or decree of forfeiture, unless by statute pending suits be allowed to proceed to judgment notwithstanding such dissolution.”

By chapter 295, Laws of 1832, it was provided that if a corporation shall have been dissolved by a decree of the Court of Chancery, or by expiration of its charter during the pendency of an action against it, the court shall have power, - on the application of either party, to make an order for the continuance of the action, and the same shall be continued until final judgment. The power thus conferred upon the court to continue actions after the dissolution of a corporation, in terms applies to all actions. The statute of 1832 remained in force until 1880, when it was repealed. We are inclined to believe that under the provisions of sections 755 and 756 of the Code of Civil Procedure the same power is now vested in the Supreme Court to continue actions pending against a corporation when it is dissolved under the provisions of section 1785 (supra), as was conferred upon the Court of Chancery by chapter 295, Laws of 1832. That the court now possesses that power was decided in the case of People v. The Universal Life Ins. Co. (17 N. Y. Wkly. Dig. 563).

In People v. Knickerbocker Life Ins. Co. (106 N. Y. 619-623), decided after the repeal of the act of 1832, Judge Danfortii in his opinion says: “ It is, therefore, plain that the funds in his hands should not be affected by it” — the judgment obtained after the appointment of the receiver — “ unless by interference or otherwise, under the direction of the court appointing him, he has made himself responsible for the final result of the litigation between the parties. (McCulloch v. Norwood, 58 N. Y. 563.) His authority to do the acts relied upon by the respondents was derived from the court from whom he received his appointment, and its exercise was necessary for the protection of property which had come to his hands.”

In the above-cited case it will be seen that it was suggested that the receiver, under the direction of the court appointing him, might subject the funds in his hands to 'the payment of a judgment obtained after his appointment, as was held he could in McCulloch v. Norwood, decided when the act of 1832 was in force.

We think it was intended to confer on the Supreme Court by sections 755 and 756 {supra) the same power that was vested in the Court of Chancery by chapter 295, Laws of 1832, and hence the order appealed from was properly granted, unless the action (abated on the dissSlution of the corporation. Hndei section 755 actions that do not abate are those where the right of action survives or continues. Whether the action set out in the complaint herein is one that survived the dissolution, the death, of the corporation, is a question as to which we have entertained some doubt.

It is held that the cause of action given by section 1902 of the Code of Civil Procedure to the representatives of a decedent whose death was caused by the negligence of another abates on the decease of the wrongdoer, and cannot be maintained against his representatives. (Hegerich v. Keddie, 99 N. Y. 258.)

It is urged with much force that a judgment dissolving a corporation ends its existence; that on the rendition of such a judgment a corporation is extinct, and the same rule as to the survival of causes of action against it should apply as to survival in actions against an individual. In Greeley v. Smith (3 Story, 657, 658) Judge Story says : “Now, I cannot distinguish between the case of a corporation and the case of a private person dying pendente lite. In the latter case the suit is abated at law, unless it is capable of being revived by the enactments of some statute, as is the case as to suits pending in the courts of the United States, where, if the right of action survives, the personal representative of the deceased party may appear and prosecute or defend the suit.”

As an original question, we should have entertained some doubts whether the cause of action set out in the complaint, the alleged negligence of the defendant in causing the death of the plaintiff’s intestate, was one that survived the dissolution of the corporation; and hence whether the court below had the right to continue the action against the receivers. But we have been cited to the opinion delivered by Justice Cullen of the second district in Hepworth v. Union Ferry Co. of Brooklyn, in which the learned justice reached the conclusion that an action for assault on a passenger of a ferry company by one of its employees, pending against the corporation on its dissolution in consequence of the expiration of its charter, survived, and, could be continued against the trustees of the corporation. The decision was affirmed by the General Term of the second department (62 Hun, 257). The appeal from the judgment of the General Term to the Court of Appeals was dismissed (131 N. Y. 645). We may assume that if the Court of Appeals had readied the conclusion in the consideration of the case that the action did not survive, and hence that the court below had no power to continue it, the appeal would probably not have been dismissed.

Under the doctrine laid down in Hepworth v. Union Ferry Co. the cause of action set out in the complaint in this action survived the dissolution of the corporation, and the case could be continued against the receivers. ' Under the authority of that case the order from which the appeal is taken should be affirmed.

Mayham, P. J., concurred in result; Herrick, J., not acting.

Order affirmed, with ten dollars costs, and printing and other disbursements.


author: Rutnam, J.:

text:
    William H. Magilton, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.

      Liability of a railroad corporation for the killing of ahorse Pi'espassing on its tracks — failure of the engineer to lessen the speed of the train, on seeing the horse.

    Upon, the trial of an action brought'to recover damages sustained by the plaintiff by reason of the killing of his horse, which strayed upon the defendant’s railroad tracks, through the alleged negligence of the defendant, the trial judge held that there was not enough evidence, showing negligence on the part of the defendant in neglecting to provide and maintain proper means of fastening, or means to secure the gate at the plaintiff’s farm crossing over the defendant’s railroad tracks, to submit to the jury, but the judge did submit to the jury the question whether the defendant’s servants were negligent in managing the train by which the plaintiff’s horse was killed.

      Meld, upon an appeal by the defendant from a judgment in favor of the plaintiff, that the only question to be considered was whether the evidence established such negligence or misconduct on the part of the defendant’s servants in managing the train which ran over the plaintiff's horse, as would render the defendant liable for its value;
    That in considering such question it must be deemed under the decision of the trial court that the horse, to recover the value of which the action was brought, was trespassing upon the defendant’s land at the time it was killed;
    That under such circumstances the defendant was not liable for the injury to the horse, unless the evidence established the fact that the animal was killed by a reckless or willful act on the part of the defendant’s servants.
    Where a horse is trespassing upon the tracks of a railroad the engineer of an approaching train, seeing the horse thereon, is not bound to lessen the speed of the train, and his failure to do so cannot be deemed a reckless, wanton or malicious act.
    Appeal by tlie defendant, Tlie New York Central and Hudson River Railroad Company, from a judgment of tlie Supreme Court in favor of tlie plaintiff, entered in the office of tbe clerk of tlie county of Greene on the 5th day of March, 1894, upon the verdict of a jury, rendered after a trial at the Greene Circuit, and also from, an order entered in said clerk’s office on the 28th day of February, 1894, denying the defendant’s motion for a new trial made upon the minutes.

      AsKbel Green and F. L. Westbrooh, for the appellant.

      J. A. Griswooa, for the respondent.
   Rutnam, J.:

Plaintiff recovered a judgment for the sum of $206, the value of a horse which strayed upon defendant’s tracks and was killed by defendant’s cars.

The complaint alleged negligence on the part of the defendant. First, in not providing and maintaining proper means of fastening the gate at plaintiff’s farm crossing, whereby the gate became open and the plaintiff’s horse strayed on the railroad tracks and the .animal in question was killed by a train of cars running on defendant’s road; second, in the reckless and careless manner in which •defendant’s servants ran said train at the time the horse was killed.

The trial judge held that there "was not enough evidence to show . negligence on the part of the defendant in neglecting to provide and maintain fastenings or means to secure the gate in question to .•submit to the jury, but did submit the question as to the negligence of defendant’s servants in managing the train by which plaintiff’s horse was killed.

Hence, the only question to be considered is, did the evidence establish such negligence or misconduct on the part of defendant’s engineer in charge of the engine that ran over plaintiff’s horse as fo render defendant liable for its value ?

As under the ruling of the court below the evidence did not show .any negligence on the part of the defendant in maintaining the fastenings of the gate at the place where the horse came on the track, and as it was not shown that the said gate became open on account of any fault on the part of the defendant or its servants, fhe horse, to recover the value of which the action was brought, must be deemed as trespassing upon defendant’s land at the time he was killed. (Munger v. Tonawanda R. R. Co., 4 Comst. 349 5 Tonawanda R. R. Co. v. Munger, 5 Den. 255; Boyle v. The N. Y., L. E. & W. R. R., 39 Hun, 171-173; 115 N. Y. 636.)

Hence, under the above authorities the defendant was not liable for the injury to the horse unless the evidence established the fact that the animal was killed by a reckless or willful act of defendant’s servants. A careful examination of the evidence shows that it fails to establish such a state of facts as to render the defendant liable under doctrines established by the above authorities.

At the place where the accident occurred there was a down grade. There was evidence showing that the train was moving rapidly,, but not that it moved more rapidly than such trains usually do at. that place. It appears that the engineer repeatedly blew the alarm whistle after he saw the horses on the track, and, although he saw the animals for some distance before the horse was struck, it was. shown that at the time of the accident one of defendant’s employees, was endeavoring to drive them from the track, and all the animals did leave the track but the one killed.

While possibly the evidence established some negligence on the-}3art of defendant’s engineer in failing to “ slow up ” the train, it. does not show any reckless or willful act on his part which caused the death of the horse.

The facts in the case of Boyle v. N. Y., L. E. & W. R. R. Co. (supra) are very similar to those in this case. There, as here, the-horses came on the railroad track through a fence the defendant was bound to maintain, in consequence of the removal of a panel in the-fence by some person not in the employment of the defendant. The horses ran on the track in front of the engine which caused the-injury for half a mile before they were killed, the speed of the train not being diminished. It was held by the General Term of the fifth district that the defendant was not bound to reduce the speed of the train. The horses were trespassing on the land of the railroad company, and it could only be made liable by showing that the-engineer acted wantonly and maliciously. That under the facts shown the trial court should have refused to submit that question to the jury. The Court of Appeals, in affirming the judgment in the-case, said: There was no evidence that plaintiff’s horses were killed by the reckless, wanton or malicious conduct of defendant’s engineer,, and hence there was no basis for recovery.”

Under the doctrine established in Boyle v. N. Y., L. E. & W. R. R. Co. (supra) it is impossible to sustain the judgment in this case. Under that decision we must hold that plaintiff’s horses, at the time of the accident, were trespassing upon defendant’s land and the latter was not bound to lessen the speed of its train. It follows that its failure to do so cannot be deemed a reckless, wanton or willful act. There being in the case no other evidence of negligence on the part of defendant except its failure to slow up its train, it follows that the case should not have been submitted to the jury, but that the trial court should have nonsuited the plaintiff or directed a verdict in favor of the defendant.

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

Mayham, P. J., and Herrick, J., concurred.

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


text:
    Lydia A. Glasier, Appellant, v. The Town of Hebron, Respondent.

      Absence of a barrier on the side of a highway — not necessarily proof of negligence on the part of the highway commissioner.

    The mere absence of a barrier upon the side of a highway, at a point where there is a perpendicular descent therefrom to the water of a pond below, is not alone sufficient to charge the highway commissioner of the town in which such road is situated with negligence, when the highway is at that point seventeen feet wide, lever and smooth.
    Appeal by the plaintiff, Lydia A, Glasier, from a. judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Washington on the 30th day of December, 1892, upon the dismissal of the complaint directed by the court after a trial at the Washington Circuit before the court and a jury.

      J. M. Whitmcm and Potter & BüUe, for the appellant.

      Edgar Bull, L. B. ATortihup, J. S. I)Amoreaux and O. B. Sturges, for the respondent.
   Putnam, J.:

The défendant was sought to be made responsible in this action for damages sustained by plaintiff resulting from the alleged negligence of its highway commissioners in omitting to place barriers on the side of a highway in said town, in consequence of which plaintiff received the injuries complained of.

We think the trial judge did not err in granting the motion for a nonsuit. Even if he was mistaken in holding that the case, as far .as the evidence of the plaintiff was concerned, was substantially as it was on the former appeal trial, and hence that it could not be submitted to the jury under doctrines laid down in this case by the Court of Appeals (131 N. Y. 447), yet, under the law as established in the subsequent case of Lane v. Town of Hancock (142 N. Y. 510), the trial court was compelled to dismiss the complaint.

The negligence charged against the defendant’s highway commissioners was in not erecting barriers on the side of the highway at the place where the accident occurred, and where there was a perpendicular descent to the water of the pond below. In Lane v. Town of Hancock (supra) the evidence tending to show negligence on the part of the highway commissioners of the town of Hancock was stronger than in this case. In that case the road was built along the side of a steep hill, with a retaining wall on the lower side, and was but twelve to fifteen feet wide, sloping from the upper to the lower side eighteen inches. Water flowing over the road made it slippery. There had been guards at the lower side of the road over the retaining wall, but the road had become filled up- to the top of such guards, so that when the plaintiff’s intestate was killed, there were in fact no barriers there. ■ The deceased was riding on a load of lumber placed on .a pair of bob sleighs. No negligence was imputed to the drive:1. When he cazne to the place where the accident occurred, without any fault or negligence ozi his part, the rear bob slippzed over the retaining wall, there being no barrier at that place for a space of twenty-five feet,, and a perpendicular descent of several feet. The sleigh was overturned and plaintiff’s intestate was killed. The Court of Appeals held, under all the circumstances,that the proof was not sufficient to establish negligezice on the jjai’t of the highway commissioners of the town of Hancock, and that the trial court should have nonsuited the jolaintiff.

In tliis case the highway, at the plaee where the plaintiff was injured, was seventeen feet wide, level and smooth, and there was no fact indicating negligence except the mere absence of a barrier.

"We think under the law, as settled in Lane v. Town of Hancock (supra), there was no question as to the negligence of defendant’s highway commissioners that could have been properly submitted to the jury.

The judgment should be affirmed, with costs.

Mayham, P. J., and Herrick, J., concurred.

Judgment affirmed, with costs.


text:
    The People of the State of New York ex rel. The American Axe and Tool Company, Relator, v. James A. Roberts, as Comptroller of the State of New York, Respondent.

      Meaning of ‘' capital stock ” as used in chapter 542 of 1880 —power and duties of the Comptroller infixing and assessing the tax — •not bound by the report of the officers of the corporation — evidence required on a review of his determination.

    The words “capital stock,” as used in chapter 542 of the Laws of 1880, and the acts amendatory thereof, refer to the capital stock authorized hy the charter of a corporation, and paid in or contributed by the stockholders thereof. It does not mean the “share” stock, but the property of the corporation contributed by its stockholders, or otherwise obtained by the corporation, to the extent required by its charter.
    When a corporation files its report and appraisement, under the provisions of chapter 542 of the Laws of 1880, and the acts amendatory thereof, the Comptroller of the State of New York is not concluded by the valuation made by the officers of the corporation of its capital stock employed within the State. He may properly hold, in the absence of any satisfactory explanation, that the value of the capital stock of the corporation is equal to the sum paid into the treasury of the corporation, and may well doubt the truth of the report of the officers of the corporation in estimating that its stock had so shrunken in value as to be worth only one-quarter of its par value.
    Where it is not suggested that a corporation possesses any surplus capital, the amount invested by it in the State of New York must necessarily be part of its capital stock, and the Comptroller of the State of New York, in assessing against such corporation a tax pursuant to chapter 542 of the Laws of 1880, is justified in doubting the reliability of the appraisement made by the officers of the corporation w]nch makes its capital stock employed within the State less than the conceded value of its r.eal estate therein.

      The Comptroller is made by the statute an assessor, and he has the right to estimate the value of the stock of a corporation according to such information as-he can obtain, or upon his own judgment; he is not bound by the report of the-officers of such corporation as to such value, and his decision fixing the amount- and value of the capital stock of a corporation employed within the State of New York will not be disturbed unless clearly shown to be erroneous, and it is for the corporation on an application for a rehearing to establish the fact that the conclusion of the Comptroller fixing the value of its property within the State was erroneous.
    Upon such application for a rehearing the corporation should make an inventory of all the real and personal property and money, if any, owned by it within the State, and furnish satisfactory proof that it owned no property therein except as set out in the inventory; whatever property, real or personal, it has within the State is presumptively a part of its capital stock, and liable to taxation.
    Certiorari issued out of tbe Supreme Court and attested on tbe 26th day of June, 1894, directed to James A. Roberts, as Comptroller of tbe State of New York, commanding liim to return to tbe office of tbe clerk of the county of Albany all his proceedings, decisions and actions, and all the accounts, evidence, documents, records and papers before him in relation to tbe determination and assessment of a tax upon tbe property of Tbe American Axe and Tool Company, under tbe provisions of chapter 542 of tbe Laws of 1880, and tbe acts amendatory thereof.

      FrederieJc G. Dow, for tbe relator.

      Theodore F. TLomeoclc, Attorney-General, and John W. Hoga/n,f Deputy Attorney-General, for tbe respondent.
   Putnam, J.:

Tbe relator, a foreign corporatiomwith an authorized capital stock of $5,000,000, of which $3,8J2,500 bad been issued, on November 14, 1893, filed a report and appraisement with tbe Comptroller, under the provisions of chapter 542 of tbe Laws of 1880, and tbe several acts amendatory thereof, wherein it reported tbe amount of its capital stock employed in this State during tbe year in question at tbe sum of $1,284,058.34, and the value thereof, as appraised by tbe officers of tbe company, at tbe sum of twenty-five dollars per share, thus making tbe value of that portion of its capital employed in tbe State $321,014.58.

The Comptroller was dissatisfied with the estimate and appraisal made by relator, and determined the amount of its capital employed in this State to be $1,284,058.34, upon which amount he decided relator was liable to pay a tax.

On the rehearing before the Comptroller, on the application of the relator, he refused to revise the tax determined as aforesaid.

It appears by the statement made and filed with the Comptroller on the 14th day of November, 1893, that 38,725 shares of the relator, of the par value of $100 per share, and on which $100 per share had been paid into the treasury of the company, had been issued. Hence, ■ the amount of capital possessed by the corporation was $3,872,500, on which a dividend of one per cent had been paid on April 20, 1893. It also appeared that during the year in question none of the stock had been sold; that the capital stock employed in the State of New York was $1,284,058.34. Accompanying said report was an appraisement thereof, made by the treasurer and secretary of said company, wherein they estimated its value at twenty-five dollars per share.

In People ex rel. Singer Mfg. Co. v. Wemple (78 Hun, 63-66) we considered the meaning of the words capital stock ” as used in chapter 542 of the Laws of 1880, and acts amendatory thereof, and reached the conclusion that those words referred to the capital authorized by the charter of the company and paid in or contributed by the stockholders. Eor instance, in the case of relator, $3,872,500 has been paid in by the stockholders. That sum was the capital stock of the corporation, the company owning that fund for the purpose of carrying on its business. That stock was represented by a certain number of shares owned by the members of the corporation— the stockholders. We think our view of the meaning of the words “ capital stock ” is clearly sustained by the authorities cited in People ex rel. Singer Mfg. Co. v. Wemple (supra), at pages 66, 67. As said by Justice Earl, in Williams v. The West. U. Tel. Co. (93 N. Y. 162-188): The capital stock ’ in this section does not mean share stock, but it means the property of the corporation, contributed by its stockholders, or otherwise ■ obtained by it, to the extent required by its charter.”

When relator filed its report and appraisement on November 14, 1893, the Comptroller was not concluded by the valuation made by its officers of its capital stock employed witliin the State. Section 11, chapter 151 of the Laws of 1882, as amended by chapter 501 of the Laws of 1885, provides that “ whenever the Comptroller is dissatisfied with such report or certificate of estimate and appraisal, as the case may be, of any corporation, joint stock company or association whose capital is only partially employed within this State, lie is authorized and empowered to ascertain, fix and determine the amount of capital employed within this State, and to settle an account for tire taxes and penalties due the State thereon.”

Tire relator claimed the amount of its capital stock employed within this State was $321,014.58. The Comptroller estimated it at $1,284,058.34.

"We are unable to say that the Comptroller erred in this matter. The relator reported that $1,284,058.34 of said stock was employed in the State — doubtless meaning at the par value thereof — and the .appraisal of its officers fixed the value of said stock at one-quarter of that sum. It thus appeared to the Comptroller from the statement and appraisement of relator filed in his office, on the one hand, that $1,284,058.34 of its capital stock was employed in the State, on account of which an equal sum had been paid into the treasury of the corporation. On the other hand was the appraisement of the secretary and treasurer, estimating said stock at one-quarter of the par value. There had been no sale of the stock. The Comptroller might properly hold, in the absence of any satisfactory explanation, that the value of the capital stock, the property of relator, was epu,al to the sum paid into the treasury of the corporation. On that assumption he could well doubt the truth of the report of the •officers of relator in estimating that its stock had so 'shrunken as to be only worth one-quarter of its par value.

Again, by said report the value of relator’s real estate in. New York was placed at the sum of $446,000, while it is claimed the value of its capital stock in the State was only $321,014.58. As it was not suggested that relator possessed any surplus capital, the .amount invested by it in the State of New York must necessarily "be part of its capital stock. The Comptroller, therefore, was justified in doubting the reliability of the appraisement of the relator’s officers, which made its capital stock employed in the State less than the conceded value of its real estate therein.

~We think, under the circumstances, under the report and appraisement filed, and in the absence of any explanation showing how" $1,284,058.34 paid into the treasury of the corporation as capital ■ stock could, in a short time, diminish in value to one-quarter of said sum, the Comptroller could properly determine that the value of the defendant’s stock in the State was what'had been paid into the corporation therefor.

However that may he, we have seen that the above-quoted provision of the statute empowered the Comptroller to make an appraisal of the value of the capital stock of the corporation. He was not bound to follow the report of its officers. As held in People ex rel. Roeblings Sons Co. v. Wemple (138 N. Y. 582), “He is made by the statute an assessor himself, and he had a right to estimate its value according to such information as he could obtain or upon his own judgment.” And it has been determined that a decision of the Comptroller in such a case, unless clecurly shown to be erroneous,, will not be disturbed. It was for the relator, on the application for a rehearing, to establish the fact that the conclusion of the Comptroller in fixing the value of its property within the State was erroneous. (People ex rel. A. C. & D. Co. v. Wemple, 129 N. Y. 558-565 ; People ex rel. Postal Tel. Co. v. Campbell, 70 Hun, 507.)

But the return of the Comptroller shows that on the application for a rehearing and revision, no evidence was produced showing that the tax levied and assessed by the Comptroller was illegally imposed, and we are unable to find any evidence in the papers showing error on the part of the Comptroller in the appraisement of the relator’s property in this State produced on the application for revision. On that application, we infer, from the papers, that relator relied on the original report-and appraisement of November 14, 1893, as evidence of error in the conclusion reached by the Comptroller. For reasons above suggested, we do not think the Comptroller was hound by the estimate of the secretary and treasurer of the company. The statute made him an appraiser and his-determination was conclusive unless on application for revision it was shown to be erroneous. Certainly such report and appraisement did not make it clearly appear, as held necessary in People ex rel. A. C. & D. Co. v. Wemple (supra), on an application for a revision, that the conclusion reached by the Comptroller was erroneous.

It is not doubtful what course should have been adopted by the relator on the application for a rehearing. It should have made an inventory of all the real and personal property and money, if any, owned by it within this State, and have offered satisfactory proof that it owned no property therein, except as set out in the inventory. Whatever property, real or -personal, relator had within the State was presumptively a part of its capital stock and liable to taxation. The relator, on the motion for revision, séems to have failed to offer any evidence tending to show that the Comptroller had erred in his original appraisement. If there was any error on the part of the latter it was easily within the power of the relator to show it by proving just what property it had in the State.

We think the decision of the Comptroller should be affirmed, with costs.

Matham, P. J., and Herrick, J., concurred.

Writ of certiorari quashed, decision of Comptroller affirmed, with fifty dollars costs and disbursements.


author: Per Curiam :

text:
    Clifford A. Spencer, Appellant, v. Peter J. McManus, Respondent.

      Flooding demised premises — liability of a tenamt to Ms landlord — proof that a faucet was opiened by a third person.

      A prima facie case of negligence, made out against a tenant by showing that the landlord was damaged in consequence of water escaping from a faucet in a toilet room rented to and occupied by the tenant, is fully met, and the absence of negligence on the part of the tenant shown when, upon the trial of the action, it is proved that the faucet was not left open by himself or his servants.
    The fact that a tenant gives a license to a third person to use a toilet room, which is a part of demised premises, does not render him liable for the negligent act of such licensee in leaving a faucet in the toilet room turned on, by reason of which the lessor sufEers damages.
    Appeal by the plaintiff, Clifford A. Spencer, from a judgment of the County Court of Albany county, entered in the office of the clerk of the county of Albany on the 19th day of February, 1891, upon the decision of the court reversing the judgment of the City Court of Albany in favor of the plaintiff, docketed in the office of the City Court of Albany on the 23d day of February, 1893.

      George II. Mallory, for the appellant.

      Reilly ds Ha/nvilton and J. Murray Downs, for the respondent.
   Per Curiam :

The dictum in Moore v. Goedel (34 N. Y. 527), that if the defendant had been in the exclusive possession of the place from which the overflow came, “it would probably have been sufficient prima faeie -to have proved the injury and where the overflow occurred,” was doubted in Harris v. Perry et al. (89 N. Y. 308-314), the court saying, in reference to the above-quoted sentence, “ that remark goes far enough, for it may at least be doubted whether the mere fact that an injury occurs on premises under the control and in the possession of a party raises any presumption of wrong against him.”

Assuming, however, that the plaintiff made out a prinna facie case of negligence against the defendant by showing that he was damaged in consequence of water escaping from a faucet left running in a toilet room rented to and occupied by defendant, we think the testimony produced by the latter on the trial fully .met this prima facie case and showed the absence of negligence on the part of defendant.

The faucet was left running between Sunday and Monday mornings, defendant’s store being closed the Saturday evening before and not opened until after the accident, and only one of defendant’s ■employees being there in the interval. He testified that at nine o’clock Sunday morning he locked up the toilet room in question, the faucet being then turned off, and.found the door locked Monday morning and the faucet turned on. The defendant fairly proved that the faucet was not left open by himself or servants. The door was kept locked. It is not claimed that the faucet was not in good order.

Although it might have been sufficient in the first instance for plaintiff to show the overflow and injury after the above evidence was in, we are unable to see how the trial court could find that plaintiff had made out a case of negligence against defendant. The act ■of turning on the water was'that of some wrongdoer, and the presumption that such wrongdoer might have been defendant or his servants was negatived by the testimony given on the trial.

It apipeared that the Empire Band had a key of the toilet room, and used it. 'As far as the evidence shows, they did so without any license or right. It does not appear that the servant of defendant who assumed to license them had any authority to do so, or that defendant had any knowledge of the matter. In fact, the defendant and another party were in occupation of the toilet room, and plaintiff was not entitled to judgment without showing that the faucet was left, open by defendant or his servants. (Moore v. Goedel, supra.) It makes no difference in this case that the Empire Band was not a legal tenant of the toilet room. They were there as they would have been, if a tenant, and hence the presumption that might exist if defendant had been the sole occupant of the room, that his negligence caused the injury, could not be entertained. The negligent act of leaving open the faucet might have been that of the Empire Band.

If defendant gave a license to the Empire Band to use the toilet room, we are unable to see that that fact created any liability against him. Nor was he liable for the negligent act of the band or its members. (Stevens v. Armstrong, 6 N. Y. 435.)

The judgment should be affirmed, with costs.

Present — Mayham, P. J., Putnam and Herrick, JJ.

Judgment affirmed, with costs.


author: Mayham, P. J. :

text:
    James W. Bender, Respondent, v. John L. Blessing, Appellant.

      Statute of Limitations — a bw' as to one of two joint makers of a note — one maker has no implied power to take the claim out of the operation of the statute as to another party.

    When upon the trial of an action brought upon a promissory note, which upon its face is barred by the Statute of Limitations, there is no evidence of payments having been made thereon by one of the defendants which would take it out of the operation of the Statute of Limitations, a motion to dismiss the complaint as to such defendant should be granted. The burden rests upon the plaintiff to show afiSrmatively that such defendant had personally made or directed to be made some payment, or had done some other act to arrest the running of the statute, -and the payment of interest on the note by one of the other makers thereof, while it prevents the running of the statute as to him, does not without express direction or authority from the other maker have that effect as to the latter, and will not as to him revive a claim barred by the statute.
    The relation of joint and several makers of promissory notes raises no implication of the relation of an agency, by which one maker can bind another in the renewal of the obligation, so as to prevent the running of the Statute of Limitations thereon against him.
    Appeal by the defendant, John L. Blessing, from a judgment of the County Court of Albany county in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the '31st day of May, 1894, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 31st day of May, 1894, denying the defendant’s motion for a new trial made upon the minutes.

      George JHJ. Stevens, for the appellant.

      Galen JR. JHJitt and Stcmwix <& JMtt/rray, for the respondent.
   Mayham, P. J. :

This action was commenced by the service of a summons on the defendant April 17, 1892. The action was brought upon a promissory note for §240 dated May 3,1879, payable to the order of John L. Blessing, and signed by Martin J. Blessing, Thomas ITilme and John L. Blessing; and John L. Blessing and Martin J. Blessing were the only defendants named in the summons.

John L. Blessing alone answered, and by his answer denied the execution of the note, and, for a separate defense, set up the Statute of Limitations. The only real question on this appeal arises upon the defense of the Statute of Limitations.

On the trial the plaintiff introduced evidence tending to show that the note was given for money advanced at the time the note bears date to John L. Blessing, the appellant, and that he negotiated the loan of the plaintiff.

The plaintiff proved the execution of the note, and that the interest had been paid on it up to May, 1891, but did not prove by whom the payments of interest were made.

The defendant introduced in evidence eight vouchers for interest purporting to have been paid by Martin J. Blessing, and signed by the plaintiff, each acknowledging the payment of sixteen dollars and eighty cents, and the last bearing date February 25, 1891.

There is no proof in the case that the defendant, John L. Blessing, ever paid or authorized the payment of any interest on this note. At the conclusion of the evidence the defendant, John L. Blessing, moved that the complaint be dismissed as to him, in various forms, on the ground that the note, as to him, was barred by the Statute of Limitations. The learned trial judge denied the motion, and submitted to the jury two propositions : Fwst. Whether the defendant, John L. Blessing, executed the note. Second. Whether the payments of interest were made on his behalf. To which ruling the counsel for the appellant excepted.

We think the motion should have been granted. The note, upon its face, was barred by the Statute of Limitations, and there was no evidence of payments by the appellant to take it out of the operation of the statute.

The burden was upon the plaintiff to show affirmatively that John L. Blessing had personally, made, or directed to be made, some payment or had done some other act to arrest the running of the statute. (Miller v. Magee, 17 N. Y. St. Repr. 547; Hulbert v. Nichol, 20 Hun, 454.)

Payment by Martin J. Blessing, one of the other makers, of the interest, while it prevents the running of the statute as to him, does not, without express direction or authority from the other makers, have that effect as to them, and will not, as to them, revive a claim barred by the statute. (Dunham v. Dodge, 10 Barb. 566 ; Shoemaker v. Benedict, 11 N. Y. 176; Winchell v. Hicks, 18 id. 558; McMullen v. Rafferty, 89 id. 456.)

The relation of joint and several makers of notes raises no implication of the relation of an agency by which one can bind another hi the renewal of an obligation so as to prevent the running of the Statute of Limitations. Van Keuren v. Parmelee, 2 N. Y. 523; Winchell v. Hicks, supra ; Smith v. Ryan, 66 N. Y. 358.)

In the case last cited Allen, J., says“ The principle is recog-, nized in all the cases that a payment which is to operate as an acknowledgment must be made by the debtor or his authorized agent; that is, an agent having authority to make a new promise or to perform for the party the very act which is to be the evidence of a new promise; ” and the learned judge adds: “ There is no agency as between several joint debtors, or between principal and surety, or between an insolvent debtor and Ms assignees, wbicb will make a payment by one evidence of an acknowledgment of tbe debt of the other so as to revive the demand.” (Citing in support of that doctrine some of the cases above referred to.)

We think, therefore, upon the evidence in this case, as it stood at the time the parties rested, the judge should have dismissed the complaint as to this appellant.

The judgment must be reversed and a new trial ordered, costs to abide the event.

Putnam and Herrick, JJ., concurred.

Judgment reversed, new trial granted, costs to' abide the event."