text:
    Marie H. Weld, Respondent, v. The New York, Lake Erie and Western Railroad Company, Appellant.

      Married woman — action by, forapersonal injury, without joinder of her husband — questions of negligence.

    A married woman might maintain an action to recover damages for an injury to her person, in her own name, without joinder of her husband, during the interval between the passage of the Repealing Act of 1880 (Laws 1880, chap. 245, § 1, subds. 36, 38) and the passage of the act of 1890 (Chap. 248), which amended section 450 of the Code of Civil Procedure.
    The questions of negligence arising in an action brought by an elderly. and infirm woman against a railroad company to recover damages for a bodily injury suffered by her while being conducted, as one of a company of some thirty passengers, by a single brakeman with a lantern, in the night-time, around a wreck on an intersecting railroad, which rendered a transfer of the passengers on the plaintiff’s train necessary, are properly submitted to the jury.
    Appeal by the defendant, the New York, Lake Erie and Western Railroad Company, from an order of the Supreme Court, made at the Erie Special Term, and entered in the office of the clerk of Niagara county on the 9th day of December, 1891, denying the defendant’s motion for a new trial, made upon the judge’s minutes, after the recovery of a verdict by the plaintiff at the Niagara Circuit.

      Subdivisions 36 and 38 of section 1 of tbe General Repealing Act of 1880 (Chap. 245) repeal section Y of chapter 90 of tbe Laws of 1860, and that part of chapter 1Y2 of Laws of 1862 which provided that “ any married woman may bring and maintain an action in her own name for damages against any person or body corporate, for any injury to her person or character, the same as if she were sole.”
    Section 450 of the Code of Civil Procedure, as enacted in 18Y6, was as follows: “ In an action or special proceeding, a married woman appears, prosecutes or defends, alone or joined with other parties, as if she was single.”
    Chapter 542 of the Laws of 18Y9 added the following sentence to section 450 of the Code: “ It is not necessary or proper to join her husband with her as a' party in any action or special proceeding affecting her separate property.”
    Chapter 248 of the Laws of 1890 amended section 450 by adding the following to the sentences above given : “ The husband is not a necessary or proper. party to an action or special proceeding to recover damages to the person, estate or character of his wife, and all sums that may be recovered in such -actions or special proceedings shall be the separate property of the wife. The husband is not a necessary or proper party to an action or special proceeding to recover damages to the person, estate or character of another on account of the wrongful acts of his wife, committed without his instigation.”

      A. D. Scott, for the appellant.

      S. JB. FiTkvns, for the respondent.
   Dwight, P. J.:

The action, begun in December, 1888, was brought by a married woman for a bodily injury sustained by her in October of the same year, by reason, as alleged, of the negligence or breach of duty of the defendant as a common carrier of passengers. The point chiefly discussed presents the question whether, after the passage of the Repealing Act of 1880 (Laws of 1880, chap. 245, § 1, subds. 36-38), and before the act of 1890 (Chap. 248), which amended section 450 of the Code of Civil Procedure, a married woman might maintain. an action in ber own name for an injury personal to herself, without joining her husband with her, as a plaintiff. The question has been a good deal mooted and the subject of conflicting decisions at Special Term. . But there have been two General Term decisions — in the-third and fourth departments — which agree in holding in favor of the right of the married woman, during the interval of time mentioned— as before and since — to maintain the action in her own name, without joinder of her husband. Those cases are Campbell v. Perry (29 N. Y. St. Repr. 670), and Haden v. Clarke (32 id. 478). Those cases also agree in holding — the former in an opinion by LeaRNEd, P. J., and the latter by MartiN, J. — -that the case of Bennett v. Bennett, in the Second Division of the Court of Appeals (116 N. Y. 584), is controlling authority for the conclusion reached by them. We think there may be some question whether — in view of the manner in ivhich the court divided in making its judgment in the last-mentioned case — it can be fairly said that the decision is. altogether authoritative on the particular question here proposed. But we believe that the three cases taken together have been generally received, by the bench as well as the bar of the State, as finally settling the question, and we are not disposed to disturb the conclusion thus reached.

The facts of the case, out of which the only remaining question arose, were briefly these : The plaintiff, an elderly woman, not in. good health, was near the end of a continuous journey from St. Louis, Mo., to her home in Medina, in this State. At Buffalo she. purchased a ticket from that city to Lockport, by the defendant’s road, and became a passenger by one of its trains, which left Buffalo between eight and nine o’clock in the evening of October sixth. On reaching Tonawanda, it was discovered that a wreck of cars on the-New York Central railroad had occurred at its crossing of the defendant’s road, which so blocked the defendant’s track as to render it necessary to transfer passengers to a train on the other side of the-wreck. In doing this, a single brakeman was detailed to proceed with a hand lantern and guide the company of twenty-five or thirty passengers around the wreck. The plaintiff was traveling alone, except, for chance companions of the journey; was somewhat impeded by her hand luggage; she ivas timid, .and soon became nervous and. agitated from the unexpected demand upon her strength. After-passing tbe wreck she naturally fell behind the other passengers, ■and became unable to distinguish the lantern of the guide among the scattered lights which confused and misled her, and before reaching the train she stumbled and fell, receiving the somewhat sei'ious injury •of which she complains.

The two questions which were, with great fairness, submitted to the jury were, first, whether the defendant’s servants and agents, •engaged in making the transfer, exercised all reasonable care to furnish to its passengers — the aged and weak as well as the young and vigorous — such light and guidance, over an unknown and difficult way, as reasonably to secure to them a safe and comfortable ¡sassage on foot from one train to the other; and, second, whether the plaintiff herself was guilty of any omission of reasonable care for her own safety, which contributed to occasion the accident to herself.

These were manifestly questions which could not properly be withheld from the jury, and they were answered in her favor upon •evidence which can hardly be said to have been conflicting in any material respect. The verdict, which was for a recovery in a very moderate amount, cannot be disturbed on general principles, and there was no particular exception in the case by which it is vitiated.

The judgment and order appealed from must be affirmed

All concurred.

Judgment and order appealed from affirmed.


source: Caselaw Access Project

author: Dwight, P. J.:

license: Public Domain

text:
    In the Matter of the Application of The Lima and Honeoye Falls Railway Company, Appellant. The Trustees of the Village of Honeoye Falls, Respondents.

      -An application to the court, under section 11 of article 1 of the General Railroad Lom (Oh. 565 of 1890) is a special proceeding — costs.

    An application to a Special Term of tlie Supreme Court, under section 11 of article 1 of the General Railroad Law (Chap. 565 of the Laws of 1890), by a railroad company, for authority to construct its road upon a street in an incorporated village, is a special proceeding, and costs as of an action are allowable therein, in the discretion of the court, under section 3340 of the Code of Civil-Procedure.

      Appeal by tbe petitioner, tbe Lima and Honeoye Falls Railway Company, from that portion of an order of the Supreme Court, made at the Steuben Special Term, and entered in the office of the clerk of that county on the 27th day of August, 1892, denying its application herein, which awards costs of this proceeding as of an action to the respondents, the Trustees of the Tillage of Honeoye Falls.

      E. A. Hash, for the appellant.

      O. II. Shuart, for the respondents.
   Dwight, P. J.:

The application was for authority to construct and operate the petitioner’s road upon and along Main street in the village of Honeoye Falls. It was made under section 11 of article 1 of the Railroad Law (Laws of 1890, chap. 565). Notice, as required by the section cited, was given to the board of trustees of the village, and they appeared and opposed the application. It was heard on the petition of the applicant, supported by numerous affidavits on the one hand, and on the remonstrance of residents and property holders on the street and affidavits on the other hand. The court denied the application and awarded to the trustees of the village costs of the proceeding as of an action, to be paid by the petitioner. The appeal is from -the last-mentioned provision of the order.

It is plain that the question involved is one of definition. If the application and its prosecution was a special proceeding, then the costs as of an action were properly awarded, in the discretion of the court (Code Civ; Proc. § 3240), and that it was such we have no doubt. It was not an action. It must, therefore, have been a special proceeding or a motion. "What is a motion is defined by sections 767, 768 of the O^e of Civil Procedure. Ry that definition an order is a direction of a court or judge made in an action or special proceeding, and the application for such an order is amotion. This, we think, indicates the characteristic which distinguishes a motion from a special proceeding, viz., that a motion is an application in a proceeding — by action or otherwise — already pending or about to be commenced, upon which it depends for jurisdiction; whereas a special proceeding is an independent prosecution of a remedy, in which jurisdiction is obtained by original process. This is in harmony with the definition, or partial definition, of a special proceeding contained in .sections 3333, 3334 of the same Code. By those sections it is declared that every prosecution, other than an action, for the protection or enforcement of a right or the redress or prevention of a wrong, is a special proceeding. This does not purport to be an exhaustive definition of a special proceeding, but it is probably sufficient for the purposes of this discussion. It indicates that a sprecial proceeding is the prosecution of a remedy by original process and independently of any other proceeding, which is opposed to the definition of a motion.

Counsel for the appellant argue that the application in this case is not within the last definition, because it is not for the enforcement of a right but for the procurement of a favor. But we think the criticism is not just. The General Bailroad Law, under which this application was made, gives to every railroad corporation, subject to the limitations and requirements of the same statute, power “ to construct its road across, along or upon any * * * highway * * * which the route of its road shall intersect or touch ” (Art. 1, § 4, subd. 4), but, by section 11, already cited, makes it a condition precedent of the exercise of that power in respect to a street in any incorporated village that it shall procure the order of the Supreme Court at Special Term, on notice to the board of trustees of such village. Undoubtedly the word “ power” as used in the provision of statute above quoted is synonymous with “ right,” and the effect of the provision is to give to the railroad, subject to certain conditions, the right to build its road along the highway, and it was to bring itself within the conditions necessary for the exercise of that right that 'this application was made. The fact that the court has the power to refuse the order asked for does not change the nature of the application. It was in a very proper sense a proceeding for the enforcement of a right, claimed by the petitioner, though not granted by the court.

But, as already said, the definition of section 3334 does not purport to be exhaustive; it declares that certain prosecutions are special proceedings, but it does not exclude all other proceedings from the same category. This application was certainly not an action. It was not a motion in any action or other proceeding. It must have been, we suppose, a special proceeding.

This precise question seems not to have been adjudicated in any reported case, but the decisions in the following cases are in accord with the principles above stated. (Rens. & Sar. R. R. Co. v. Davis, 55 N. Y. 145; Matter of Jetter, 78 id. 601; Matter of Long, 39 N. Y. St. Repr. 892; Matter of Holden, 126 N. Y. 589.)

We can have no doubt that the proceeding on this application was a special proceeding within the provision of section 3240 of the Code of Civil Procedure, and that costs as of an action were properly awarded to the respondents, in the discretion of the court.

The order appealed from must be affirmed, with costs.

Lewis, Macqmber and Haight, JJ., concurred.

That portion of the order appealed from affirmed, with ten dollars costs and disbursements.


text:
    James Danihee, Appellant, v. John Hyatt, Respondent.

      jEjeetment ■— claim by the defendant in right of his wife.

    On the trial of an action of ejectment before a referee, it appeared that the defendant personally ejected the plaintiff from the land in suit, and thereafter, down to the trial, maintained exclusive possession thereof, apparently on his own responsibility and without making or disclosing any claim of agency.

      JBeld, that the complaint should not be dismissed, without a decision on the issue of title, on the ground that the possession was not withheld from the plaintiff by the defendant, merely because the defendant gave evidence, under a general denial, that his wife claimed a right of occupation, and that he acted under her directions, not previously disclosed.
    In such a case, the character in which the defendant assumed to act in forcibly dispossessing the plaintiff and taking possession of the premises, is to be judged by his acts and accompanying declarations, and not from any secret understanding between himself and his wife.
    Appeal by the plaintiff, James Danihee, from a judgment of the Supreme'Court, entered in the office of the clerk of Cattaraugus county on the 11th day of May, 1892, on the report of a referee dismissing the complaint.

      William H. Henderson, for the appellant.

      Q-. W. Oole, for the respondent.
   Dwight, P. J.:

Tlie action was ejectment for a small triangle of land adjacent to tlie boundary line between two village lots in tbe village of Great Yalley. The allegations of the complaint were, in the simplest form — a leasehold estate in the plaintiff, and an unlawful withholding of possession by the defendant; issue was joined by a general denial, only, and the sole finding of the referee was, in effect, that possession was not withheld by the defendant. The issue of title was not passed upon, and very properly not, if, as the finding was, possession was not withheld from the plaintiff by the defendant.

The undisputed facts of the case were that of two adjoining lots carved out of a larger tract by a common grantor, the plaintiff had title to the one and the wife of the defendant to the other. The plaintiff claimed that the three-cornered piece in question was. included within the true boundaries of his lot, and he built a fence on what he claimed to be the boundary line. The defendant came on, in person, and tore down the fence and threw it off from the-triangular piece. In doing so he made no disclosure of any agency for his wife, nor claimed title in her behalf, but declared, in substance, that he would have no fence on that line. Again, the plaintiff was. unloading some wood on the triangular piece, when the defendant-came on and threw off the wood as fast as it was unloaded, and Ins-own testimony on the subject is, “I told him I didn’t want any wood put there. * * * I told them I would throw it off if they put it there. I told them I would not let them put wood there; ” and there was no mention of any claim on the part, of his wife. Again, the defendant drew a wagon onto the three-cornered piece and chained it fast to a gatepost, and left it there with the evident purpose of asserting and holding possession of the-land on which it stood, and there, so far as appears, the wagon stood, at the time of the commencement of the action.

On the trial the defendant was permitted to testify that he did all of these .things by direction of his wife. But that fact, if it was-such, was never communicated to the plaintiff and, as affecting his-rights, cannot serve to qualify the acts and accompanying declarations of the defendant himself.

Counsel for the defendant are disposed to argue that, because. Mrs. Hyatt and not the defendant had title to and was in the' occupation of the adjoining lot, therefore, she and not her husband must be presumed to be the person claiming to occupy the triangle in dispute. But this is to beg the question of the effect of the deed of the defendant’s wife. If that deed should be held, on its face, to include the triangle, then it would be fair to assume that she claimed to occupy it with the body of the lot; but if the contrary should be held to the effect of her deed, then no such presumption could arise, and Mrs. Hyatt herself testified that she claimed no land except such as was covered by her deed, which was in evidente.

But even if it should be conceded that Mrs. Hyatt was claiming the right to occupy the piece in dispute, that fact would not be inconsistent with her husband’s unlawfully seizing the possession and withholding it from the plaintiff. That is the fact which is charged in the complaint as the ground of the plaintiff’s action, and which we think is clearly established by the undisputed evidence from which the facts above recited are drawn. .That evidence discloses repeated acts of dominion exercised by him, to the exclusion of all rights of the plaintiff, and finally the taking of actual and ostensible possession of the land, which was maintained down to the time of the commencement of this action. All this was done by the defendant in person and apparently, and to some extent avowedly, on his own responsibility. The character in which he assumed to act in forcibly dispossessing the plaintiff and taking possession of the premises in dispute, was to be judged from his acts and accompanying declarations, and not from any secret understanding between himself and his wife. The plaintiff had no ground for charging the responsibility for those acts upon the wife of the defendant, and if he had done so in an action against her, his remedy would easily have been defeated by a disclaimer on her part of such responsibility. The case of Martin v. Rector (101 N. Y. 77), which is cited by the learned referee, was one in which- the husband and wife resided together on the premises in dispute, and the question was whether the husband, as the head of the family, was in law presumed to be the occupant of the premises, notwithstanding that the title claimed was in the wife, and the question of occupancy was held to be a question of fact. Ye find nothing in the doctrine of that case which is necessarily decisive of this.

Upon the case made by tbe record in this action we are nnable to see how tbe plaintiffs complaint could be properly dismissed without a finding and decision adverse to him upon tbe issue of title made by tbe pleadings.

Tbe judgment should be reversed, and a new trial granted.

Lewis, Maoomber and Haight, JJ., concurred.

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


author: Dwight, P. J.:.

text:
    Edward A. Milliman, Respondent, v. George Huntington, Appellant, Impleaded with Jacob Dold.

      Oontraet for the sale of real estate — essentials of — specific performance.

    A contract for the sale and purchase of real estate must be all in writing, in order to be valid; and, in order to be specifically enforced, it must be certain and definite in all its material provisions.
    Appeal by tbe defendant, George Huntington, from a judgment of tbe County Court of Niagara county, entered in the office of tbe clerk of that county on the 21st day of September, 1892, on tbe findings and decision of tbe County Court of Niágara county.

      A. Moot, for the appellant.

      A. K. Potter, for tbe respondent.
   Dwight, P. J.:.

" Tbe action was to enforce tbe specific performance of a contract of tbe defendant Dold to purchase from tbe plaintiff a farm of about 120 acres in tbe town of Wheatfield in Niagara county, which contract was executed with tbe plaintiff February 24, 1892, and to determine tbe claim of the defendant Huntington to an equitable interest in tbe same property, by virtue of a contract between him and tbe plaintiff which was executed on the 17tb day of February, 1892.

Tbe answer of tbe defendant Dold admitted tbe title of the plaintiff to tbe premises described in the complaint saving and excepting tbe interest of the defendant Huntington, if any, therein; admitted all the other material allegations of the complaint; averred his readiness to perform the contract on his part whenever the claim of Huntington, of which the latter had given him notice, should be extinguished, and demanded judgment establishing the respective rights of the plaintiff and Huntington in the premises, and that upon performance by him, Dold, of the contract on his part, the plaintiff and Huntington be adjudged to convey to him the ‘whole of the said premises.

The answer of Huntington sets out, in substance, his version of the contract or agreement between himself and the plaintiff ; avers that it provided for an election by the plaintiff, which was after-wards exercised by him, to retain an undivided one-third of the premises, and that it provided for the execution by the parties thereto of a formal instrument,' embodying its provisions, on the 18th day of February, 1892, at Tonawanda; that the parties met at the time and place mentioned, when the defendant Huntington was ready and willing and offered to perform the terms of the agreement on his part, and to execute the formal contract as agreed, and requested the plaintiff to do the^me, but that, at the request of the latter, the time for the closing of the agreement was extended to include the twentieth ;of the same month; that on that day the parties again met, 'when the defendant Huntington was still ready and willing and again offered to perform on his part and demanded performance by the plaintiff, but that the latter then refused and still refuses to perform on his part; that the said agreement provided for a release clause to be inserted in the mortgage to be given by the defendant Huntington, and that he offered to waive the insertion of such or any release clause, and to execute the mortgage for three years or any other term satisfactory to the plaintiff. And said answer avers that by reason of said contract, the defendant Huntington obtained and now holds the equitable title to an undivided two-thirds of the premises described, and a right or interest therein prior and superior to any right or interest of the defendant Hold by reason of the alleged contract with him, set out in the complaint; and said answer demands judgment dismissing the plaintiff’s complaint as to the defendant Huntington, with costs.

It is thus apparent that the only real issue in the case was between the plaintiff and the defendant Huntington, viz.: whether the latter had any interest in the premises described, by virtue of his contract with the plaintiff, which could stand in the way of the full performance of the contract of the plaintiff with the defendant — Dold —• and that question may be otherwise stated to be whether the contract of Huntington was one of which specific performance could be, to any extent, enforced.

There is no disputed question of fact in the case; counsel for the appellant concedes that the facts are correctly found by the learned County Court. The facts so found which relate to the contract of Huntington are, in substance, as follows:

On the 21st of January, 1892, the plaintiff, at the request of Huntington, signed and delivered to him an instrument in writing in the following terms :

“January 21, 1892.

“ In consideration of the sum of one dollar paid to me this date, the receipt whereof is hereby acknowledged, I hereby agree to give George Huntington the right to purchase my home farm fronting on the Niagara river, about one mile west of Gratwick Station, consisting of about 120 acres more or less, for the sum of $500 per acre, if taken within twelve days from this date. Terms, one-fifth down, balance to be secured by bond and mortgage of not less than three years’ duration, with six per cent interest, payable semiannually, I to have the privilege of retaining one undivided third interest on the same terms as the purchasers.

“ The mortgage to be subject to release of any part or all the property, on conditions to be hereinafter agreed upon.

“ First payment of one-fifth down to be made as follows, viz.: $4,000 within ten days after February 1st, and the balance within thirty days from first payment.

“A contract will be given on receipt of first payment of $4,000, and a deed when the total of one-fifth or $12,000 is paid up, said sum to include the one-third interest, or $4,000, which I retain.

“(Signed.) E. A. MILLIMAN.”

On the second day of February the plaintiff, at the request of Huntington, indorsed on the above a memorandum: “ Option extended to February 17th,” and signed it.

On. the seventeenth of February both parties signed a further agreement, indorsed on the same instrument as follows:

“ The terms of the within contract are hereby accepted by both parties hereto. The parties to meet on Feb’y 18, 1892, and sign a formal contract at Tonawanda, George Huntington to pay five hundred dollars at the signing of the contract, to bind the bargain, the same to be applied on the purchase price.

“Fe&y 17,1892.

“(Signed.) GEOEGE HUNTINGTON,

“E. A. MILLIMAN.”

On the eighteenth of February both parties signed a still further agreement indorsed as before, as follows:

“ In consideration of the sum of $1, the receipt whereof is hereby acknowledged, the time within which to close up the within contract is hereby extended up to and including February 20, 1892. All the terms to remain the same.

“ Hated FeVy 18, 1892.

“GEOEGE HUNTINGTON,

“E. A. MILLIMAN.”

Nothing was ever paid by Huntington on account of these agreements, or either of them; nor was anything ever done by the parties, or either of them, by way of performance of such agreements, or either of them.'

The agreement of January 21, 1892, above quoted, does not express the entire agreement made between the plaintiff and Huntington at the time it was made; but in addition to what is expressed therein, it was, at the same time, and as part of the same agreement, verbally agreed between them that a company or syndicate would be gotten up by or through the influence of Huntington to purchase the premises described in the complaint, and the words in the agreement, “ I to have the privilege of retaining one undivided third interest on the same terms as the purchasers,” were intended to give the plaintiff the privilege, at his election, to take an interest in the company or syndicate so to be formed. Huntington never procured the formation of such company or syndicate.

And as conclusions of law the court found: (1) That the defendant Huntington had no right or claim to the property described in the complaint, nor interest therein, nor is entitled to have the agreement set forth in the findings of fact, or any modification thereof, specifically performed; (2) that the plaintiff is entitled to a specific performance of his contract with the defendant Dold, and he directed judgment accordingly, with costs against the defendant Huntington.

Upon the foregoing statement we can have no doubt of the correctness of the conclusions of the learned County Court. The series of instruments or memoranda signed by one or both of the parties seem to constitute not so much a contract for the sale of land as an agreement to make a contract, some of the provisions of which still rested in parol, some remained to be subsequently agreed upon, some were so uncertain and indefinite that their specific performance could not be decreed. The fact found by the court, that it was a part of the original agreement between the parties that Huntington was to organize, or procure the organization of, a syndicate to purchase the land, is fully borne out by the evidence aliwide, and it rests wholly in parol. It, of something of similar effect, is necessary to give any intelligible meaning to that provision of the written agreement which gives to Milliman “the privilege of retaining one undivided third interest on the same terms as the purchasers” The reference in these last words is, necessarily, to purchasers other than or including Huntington; and as there is no other mention of such purchasers ” in the written memoranda, it becomes necessary to resort to evidence aliimde to explain it. That resort being liad, it is plain that the provision just quoted is entirely indefinite, for what terms, Or pricg, would finally be obtained from the purchasers was altogether uncertain. A letter from Huntington, which is in evidence, under date of February twelfth, shows that it was a part of the scheme conceived by him that the purchasers or members of the syndicate should come in on the basis of $600 per acre,” but- whether that part of the scheme would be fully Realized remained to be demonstrated, and, therefore, the terms upon which Milliman might, at his election, retain an undivided one-third interest in the property and enterprise, were left wholly. uncertain. For that reason, if for no other, the contract is incapable of specific enforcement.

Another important provision of the contract was expressly left to be subsequently agreed upon. That was the provision relating to the release of portions, or the whole, of the property from the mortgage to be given by the purchaser or purchasers. Whether the objection on this ground to the specific enforcibility of the contract can be obviated by a waiver of the provision on the part of the defendant Huntington, as being one wholly for his benefit, is a question upon wliicli we are not entirely agreed and upon which we do not pass.

But the same cannot be said of the provision in respect to the time in which the mortgage would have to run. By that provision, the large balance of four-fifths of the purchase price of $60,000 was to be secured by bond and mortgage of not less them three years’ duration.” It is impossible for the court to say that this limitation of time was for the benefit, solely or chiefly, of the purchaser. On the contrary, in these days, of low rates of interest, the investment of $48,000, on good security, at six per cent, payable semiannually, was a very favorable one, and one which the vendor might well desire to extend for as long a time as possible. But the provision for the duration of the mortgage was entirely uncertain, except on the minimum side, and was incapable of being rendered certain except by further agreement of the parties. The offer of the defendant to make the mortgage for any time to be named by the plaintiff, was a liberal one, no doubt, but it did not render the contract enforcible as it was made, and, in an action for the specific performance of a contract, even equity will not compel a man to make a new contract, however favorable to himself, in order that it may be specifically enforced.

A contract which, as in this case, is required by the Statute of Frauds to be in writing, must be all in writing in order to be valid; and, in order to be specifically enforced, it must, in the nature of things, be certain and definite in all its material provisions. (Bailey & B. v. Ogdens, 3 Johns. 399; Abeel v. Radcliff, 13 id. 297; Wright v. Weeks, 25 N. Y. 153; Buckmaster v. Thompson, 36 id. 558; Brown v. N. Y. C. R. R. Co., 44 id. 79; Stanton v. Miller, 58 id. 192; Drake v. Seaman, 97 id. 230; S. C., 27 Hun, 63.)

For failure to comply with these well-nigh elementary rules, we regard the contract in this case as neither entitling the defendant Huntington to the affirmative relief asked for in his answer, nor as constituting any defense to the cause of action set out in the complaint.

The judgment appealed from should, therefore, be affirmed.

Lewis, Macomber and Haight, JJ., concurred.

Judgment of the County Court of Niagara county affirmed, with costs.


text:
    The People of the State of New York ex rel. James Low and Others, v. George W. Wright, as Mayor, and Others, Constituting the Common Council of the City of Niagara Falls, and Others.

      General city tax — provisions of the charter of the city of Niagara Vails — substantial compliance therewith.

    The act of incorporation of the city of Niagara Falls (Chap. 143 of the Laws of 1892) provides that no tax can be ordered except by the concurring vote of a majority of all the members of the common council in office, and that for the ■ purposes of the general city tax in each year the common council shall make a careful estimate of all expenses of the city for the current year, not to exceed one per cent of the assessed valuation, such estimate to be made, in detail, of the amounts severally required for the purposes enumerated.
    The common council committed the making of the estimate for the year 1892 to its finance committee, which made and reported a detailed estimate, within the prescribed limit, to the common council, and asked to have the city clerk instructed “to spread the tax roll” accordingly. This report was approvedand adopted by the requisite vote of the common council necessary to order a tax.

      Held, that the action thus taken constituted a substantial compliance with the requirements of the statute, in respect to fixing the amount, and the ordering of the tax.
    That as the purpose to levy the tax and have it collected was plainly manifested, and substantially in the manner provided by law, the tax should not be annulled for mere technical defects.
    Certiorari to the common council and other officers of the city of Niagara Falls, to review their proceedings in respect to the ordering, levying and collecting of the general city tax for the year 1892.

      Eugene Ga/ry, for the relators.

      W. J. By am and W. Cawyl Ely, for the -defendants.
   Dwight, P. J.:

The return of the defendants was not traversed and there are no fact's in dispute.

By the act of incorporation of the city of Niagara Falls, its common council consists of the mayor and eight aldermen. (Laws of 1892, chap. 143, § 30.) The mayor has no vote except in case of a tie. (Id. § 33.) A majority of the common council is a quorum for the transaction of business, but no tax can.be ordered “ except by a concurring vote of a majority of all members of the common council in office, which vote shall be by yeas and nays, and a record thereof be entered at large in the minutes.” (Id. § 34.)

For the purposes of the general city tax in each year, the common council is required to make a careful estimate of all expenses of the city for the current year, other than for school purposes ; the aggregate of such estimate not to exceed one per centum of the assessed valuation of the real and personal property of the city; such estimate to be made in detail, of the amounts severally required for the purposes enumerated. (Id. §§ 178, 225.)

This act provides that, for the purposes named in such estimate and within the limitation before mentioned, the common council has power to raise by tax from the taxable inhabitants and property of the city such sums of money as they may deem proper. (Id. § 178.) By section 183, it provides in what manner such tax shall be spread upon the assessment roll; that such assessment roll, when completed, with the tax spread thereon, shall be filed with the city clerk, shall be by him reported to the common council, apd, upon being approved and confirmed by the common council, shall be a lien upon the real estate described therein.

In the case in hand the matter of making the estimate above mentioned, was duly committed by the common council to its finance committee, who, at a meeting of the common council duly held on the 3d day of October, 1891, made the following report and recommendation:

To the Common Council:

“We respectfully submit the following budget as an estimate of our running expenses for the fiscal year ending the first Tuesday in February, 1893:

Police fund.................................. $8,500 00

Highway fund............................... 20,000 00’

Health fund................................. 1,000 00

Lighting fund......................:......... 13.000 00

Water fund.................................. 500 00

Sewer fund................................... 1,000 00

Eire department fund......................... 5,000 00

Contingent fund.............................. 24.000 00

Total. .. :.............................. $73,000 00

“ Making a total assessment of $73,000 upon the assessment roll.

“ The total assessment of the value of all personal property and real estate is $8,899,655. As we cannot raise but 1 per cent of the-total valuation this year, which amounts to......... $88,996 55

Less ^j-of 1 per cent for paving.................. 26,698 96-

Leaves us............................... $62,297 5-9

Estimated receipts for licenses, fines, etc............ 12,000 00

$74,297 59

“ And we hereby submit the above report as the estimate of the-finance committee, and would ask that the city clerk be instructed, to spread the tax roll according to the above report, immediately.

“FRANK E. EAMES,

“FRANK E. SMITH.”

At this meeting there were present the mayor and six aldermen. It was moved that the above report be approved and adopted. The-vote was taken by ajes and nays and all present voted in the affirmative ; all of which appears entered in the minutes of the meeting,, which also contain the names of the aldermen present and voting.

We are of the opinion that the action thus taken and recorded by the common council constituted substantial compliance with the requirements of the statute in respect to fixing the amount of and ordering the general city tax to be levied and collected in the year-1892. There is in the statute no provision in terms requiring the common council to do either of these things, yet the duty of the common council to do both is plainly implied. In one of the provisions quoted, the power is conferred to raise the necessary moneys for certain purposes by taxation, and in another the character of the vote is prescribed by which the’ tax shall be ordered. The provision in respect to an estimate of the expenses of the city for the-current year to be carefully made in items and within a fixed limitation, can have no other purpose than to fix the amount of the tax to be laid, and the adoption of such estimate and the direction tjiat the amount so fixed be spread upon the roll, seems to leave nothing undone towards the “ ordering ” of the tax. All this is accomplished by the action of the common council above recorded. The careful estimate in items was made by the appropriate committee and reported to the board, and this was made the action of the board by its vote approving and adopting the report of the committee. Moreover, the committee recommended that the tax thus ascertained in amount be spread upon the assessment roll by the city clerk, and this action- was ordered by the board when the recommendation of the. committee was adopted. The action of the common council then, of the third of October, was, we think, substantially equivalent to a formal resolution by that board reciting the report and recommendation of the committee and resolving, severally, in accordance with each, and the vote by which that action was taken was in strict compliance with the' statute; a majority of all the members of the common council in office was present, in the persons of the six aldermen, not counting the mayor, and the motion was adopted by the unanimous vote of that majority, taken by ayes and nays, and entered in the minutes.

The statute is silent as to who shall spread the tax upon the assessment roll, though very explicit as to how it shall be done; it was done in this case by the city clerk by direction of the common council, and being reported by him to the common council at a. meeting of the tenth of October, was approved and confirmed by them by vote of a majority of the quorum present. The contention of the relators has been that this action required the concurrent vote of a majority of all the members of the common council in office; but sixch is, of course, not the case if, as we hold, the previous, action of the third of October was the “ ordering of the tax,” which plainly, this action of October tenth could not have been. Either the tax had. been previously ordered or it was never ordered at all. It certainly was not ordered by a vote of the common council which adopted and.confirmed the clerical work of spreading the tax upon the assessment roll; that action necessarily pi’esupposes the ordering of the tax.

But it is urged, on the part of the relators, that the report of the finance committee, by the adoption of which, as we hold, the amount of the tax was fixed and the tax ordered, was so indefinite and ambiguous as not at all to fix the amount of the tax to be levied, and to leave a wide margin to the merely clerical oificer upon whom the duty was laid to spread the tax. That report is quoted in full above, and is, it must be said, somewhat peculiar in its methods of reaching the result intended. But it was evidently understood by those to whom it was addressed and whose duty it became to act upon it, and is, we think, easily understood upon a moment’s examination. It first gives, seriatim, the estimate of the committee of the sums necessary to meet the requirements of the several funds enumerated in section 178 of the statute, and foots them up at $73,000. It then states the total assessment of real and personal property for that year at $8,899,655, and points out that, consequently, the limit of the tax to be raised in that year is $88,996.55, and it then proceeds to demonstrate that such amount will be sufficient to meet all the estimated demands of the city for the year. This it does by first deducting from the amount proposed to be raised, the three-tenths of one per cent of the total assessment allowed by section 225 to be raiséd for the public improvement fund (pavements, etc.). This leaves only $62,297.59 to meet the $73,000, estimated to be necessary for the other funds; but this deficiency, it shows, may be made up, and more, by the receipts from license fees, fines, etc., estimated at $12,000, which will give the sum of $71,297.59, applicable to the funds enumerated in section 178. So considered, the report is easily understood, and without ambiguity. Th,e amount of tax to be raised is reported at the limit of the statute, viz.: $88,996.55. At that sum it was fixed, and ordered to be spread upon the assessment roll by the approval and adoption of the report; and at that sum it was spread upon the roll — as we are bound to assume, because nothing appears to the contrary.

The main question in this case does not appear to have arisen in any adjudicated case in this State, but the principles here adopted were applied mutatis mutcmdis, in two cases, by the Supreme Court of Iowa. (West v. Whitaker, 37 Iowa, 598; Snell v. Fort Dodge, 45 id. 568.) In the former of those cases, which was strikingly like the present -in essential features, the court say: A more formal entry might have been made, and the auditor might have been directed to place the tax upon the tax list. But it is well settled that, a tax cannot be enjoined for such technical defects, omissions or mere irregularities. The purpose to levy the tax, and have it collected, is plainly manifest, and substantially in the manner provided by law.”

In this case we think there was no failure to comply with the substantial requirements of the charter of the new city of Niagara Falls, and that the writ of certiorari should be quashed, and the proceedings of the defendants in all things confirmed.

All concurred.

So ordered, with costs to be paid by the relators. Writ of certiorari quashed, and the proceedings of the defendants in all things confirmed, with costs to the defendants.


text:
    Paulina Colburn, Appellant, v. Adam Marsh and Others, Respondents.

      Easements' — right of way by prescription — adverse user — fencing—presumption that open user was under a claim of title and adverse — appurtenance.

    The statutory rule (Code of Civil Procedure, § 372) which prescribes either a substantial inclosure or usual cultivation or improvement as a necessary condition of adverse possession by a person claiming title to land not founded upon, a written instrument, has no application to the case of an easement, as, e. <7., that of a right of passage.
    While fencing the sides of an alleged right of way is not necessary for the purpose of showing that the user was adverse, it may be important as showing the definite location and notorious use of the right of way, and as tending to show the exclusive character of the claim of right asserted in its use.
    Not only does the presumption of a grant arise from the fact of open, notorious, uninterrupted, undisputed and adverse user of an easement of right of way, but every such user is presumed to have been under claim of title and adverse; and the hnrden is upon the party alleging that the user was by virtue of a license or permission to prove that fact by affirmative evidence. ■
    The presumption that such open and uninterrupted user was under a claim of right, and, therefore, adverse is a refutable presumption.
    An easement of right of way, established by such user, passes under the term “appurtenances” in a deed of the dominant estate.
    Appeal by the plaintiff, Paulina Colburn, from a judgment of the Supreme Court, dismissing the complaint on the merits, entered in the office of the clerk of Chautauqua county on the 18th day of January,' 1892, upon the report of a referee.

      Willimn II. Henderson, for the appellant.

      J. I. Fowler, for the respondents.
   Dwight, P. J.:

The action was to restrain the defendants from obstructing ■or interfering with the plaintiff’s use of an alleged right of way across a portion of the defendants’ farm. There is no conflict •of evidence upon any material question of fact in the case. The only question is whether the undisputed evidence establishes an irrefragable title in the plaintiff, by prescription, to the easement in question. It is our conclusion that such is the effect of the evidence. The contention to the contrary which is sustained by the learned referee, is to the effect that the user upon which the plaintiff relies to establish her title to the easement was by the license and consent of the defendants’ grantor.

The unquestioned facts of the case are to the following purport: As early as the year 1832, Nathan Phillips, the defendants’ grantor, by mesne conveyances, occupied the lot of eighty-ffve acres now owned and occupied by the defendants, in the town of Carroll in Chautauqua county, of which he afterwards, and in the year 1836, received a deed from tbe Holland Land Company, and on which he lived until his death in 1853.

At the earliest date above mentioned the lot of fifty acres adjoining Phillips’ lot on the north and cornering with it on the east, was 'occupied by one Benjamin Russell. There was no highway contiguous to the fifty acres, the nearest public road being one known ■as the Frewsburg road, which traversed the Phillips lot in a direction from southwest to northeast, and approached to within twenty rods from the corner of the two lots. At that time Russell had access to the highway from the fifty acres by means of a lane or roadway which ran from the south line of the fifty acres to the road, at a point where the distance between the two was about twenty-nine rods ; its location was that of the right of way here in question. Sometime before the year 1838, Yearon Eaton, the father and grantor of the plaintiff, succeeded to Russell in the occupancy of the fifty acres, and in that .year he received a deed of the lot from the Holland Land Company, and continued to occupy it until his death in 1881. In that year he conveyed the fifty acres, with appurtenances, to the plaintiff, excepting eleven acres off the west end which he had previously conveyed. The plaintiff has occupied the land conveyed to her from that time to the present, and has made use of the right of way in the same location and in the same manner as her father and Benjamin Russell had done before she became the owner of the lot, except for the interference therewith on the part of the defendants which it is the object of this action to restrain.

It is unnecessary to recapitulate the facts of the case in greater detail. 'It is sufficient to say that the undisputed evidence exhibits a user of the right of way in question by the successive occupants of the fifty acres, or what is known in the case as the Eaton farm, not only for twenty years, but for a period sufficient to satisfy the ancient rule of the common law; literally, a period beyond which the memory of man runneth not. No witness speaks of a time when the right of way was not used, and the witness who speaks of the remotest date mentioned in the case, knew the right of way as then in use. The user was during all that time open, notorious, necessarily known to the owners and occupants of the Phillips farm. Even at the remotest date above mentioned the lane or roadway was fenced on one side, and it came to he fenced on the other side as soon as the land was so far cleared and improved as to render fencing convenient to the uses to which it was put. And so the evidence discloses that during the whole period covered by the memory of all but the oldest .witnesses in the case, the right of way "in question was marked by fences on both sides down to the time, less than twenty years before the commencement of this action, when the interference began of which the plaintiff complains.

The evidence of such fencing is important as showing the definite location and notorious use of the right of way, and, chiefly, as tending to show the exclusive claim of right asserted in its use. It was not necessary for the purpose of showing that the user was adverse. The statutory rule embodied in the Code of Civil Procedure (§ 372) which prescribes either a substantial inclosure or usual cultivation or improvement, as a necessary condition of adverse possession by a person claiming title to land not founded upon a written instrument, has no application to the case of an easement as of passage. Such an easement is an incorporeal right, and may as well be asserted and exercised over and upon an open and uncultivated field as upon one substantially inclosed and usually cultivated. Indeed inclosure and cultivation are likely to be derogatory to the free exercise of a right of passage over land, and, in this case, the interference with the plaintiff’s right complained of, consisted, in great part, of an attempt to cultivate by plowing so near the roadway as to obstruct its convenient use for the passage of wagons.

It was apparent from the outset of the examination of this case that its determination depended, not upon any question of the open and notorious character of the use of the right of way, nor of its continued, uninterrupted and undisputed exercise for a period much longer than necessary to establish title to the easement, but upon the sole question whether such user was under a claim of right and, therefore, adverse. And here we think the learned referee was in error in failing to give the proper force and application to the presumptions which arise from the established facts of the case. We suppose it to be entirely settled as the law of this State that not only does the conclusive presumption of grant arise from the fact of open, notorious, uninterrupted, undisputed and adverse user of such an easement, but that every user — in other respects answering the definition given — is presumed to have been under claim of title and adverse, and that the burden is upon the party alleging that the user has been by virtue of a license or permission to prove that fact by affirmative evidence. The first of these propositions is scarcely disputed in this case. It is supported by the elementary writers on the subject, and has been constantly enforced by our courts. (See 2 Greenleaf’s Evidence, § 537; Ward v. Warren, 82 N. Y. 265; Nicholls v. Wentworth, 100 id. 455, and the authorities cited in each.) The second proposition is also well supported by authority. In Miller v. Garlock (8 Barb. 153), Judge Paige says :' “ The use-, of an easement for twenty years, unexplained, will be presumed to. be under a claim or assertion of right, and adverse, and not by leave.- or favor of the owner; ” and in Hammond v. Zehner (21 N. Y. 118),, which was an action for damages caused by flowing lands, the question is stated by the court to be whether the uninterrupted use of the dam for twenty years was sufficient defense, without other manifestation of an adverse possession than the effect which it produced during that time upon the plaintiff’s land ? In other words, will the uninterrupted use of the easement be presumptive proof of. an adverse possession ? And the question • was adjudged in the affirmative.

The rule is .certainly well founded in principle. The presumption is evidently based upon experience of the conduct of men in given circumstances. It is contrary to probability that the owner of land should quietly submit to a long-continued use of a portion of it, by a person without right, in such manner as to be injurious to his. estate. Kindly feeling and good neighborhood may induce such a, concession now and then or for a brief time, but submission to such a burden without protest or objection for a long series of years, naturally raises the presumption of a right asserted and conceded.

But the referee, in response to a request of the plaintiff, has made a special finding of fact 'altogether in accordance with the last-mentioned presumption. The request related to the use of the easement, by Yearon Eaton during the last eleven years of his life, while the. Phillips farm was occupied by one Thayer, who ivas one of the. grantees of Nathan Phillips. The finding is that “ during all the time the said Hiram E. Thayer occupied said Phillips farm, as before stated, the said Yearon Eaton occupied the said Eaton farm,, and during all said time he used and occupied said lane and roadway in passing to and from said Erewsburg highway, as the same had been previously used by him, under claim of title thereto and of right so to use the same, exclusive of any other right.”

It is true that in his general report the referee finds, in substance, that the original user by Eaton began in a mutual understanding between himself and Phillips, without deed or conveyance of the right of way, and without consideration for the license given by the one for the accommodation of the other.

By what means the learned referee was able to reconcile the general and special findings referred to is not clear, but it is certain that '■the former has no competent evidence to support it. The only testimony which tends to that effect consists of certain declarations of Phillips himself, made to members of his own family in the absence * of Eaton, and never communicated to him. This . testimony was '.received under the objection of the plaintiff, and was clearly incompetent. It was offered, no doubt, in response to testimony on the part of the plaintiff, objected to by the defendant, showing declarations of Eaton to the effect that he had a deed of the right of way. In respect to the testimony of this character, on either side, it is to be observed that it was the easement alone which was in question; that Eaton was in possession of the easement during the whole period of his life, which is covered by the evidence, and that Phillips was never in possession of the easement, so that if the doctrine that the declarations of the party in possession are competent as evidence to characterize his possession, has any application to easements, the rule would apply in favor of the declarations of Eaton, and not in favor of those of Phillips. But it is not necessary to discuss that ■question; the declarations of Phillips were clearly incompetent, and ¡should have been excluded, and they may now be disregarded. The «declarations of Eaton may also be disregarded, and the case is then .¡absolutely devoid, on the one hand, of direct evidence of a grant of ■¡■the right of way, and, on the other hand, of any evidence of a license, permission or mutual understanding between the parties •under which the user had its beginning. And so the case would ¡stand, as we think it must stand, solely upon the presumption which '¡necessarily arises from the existence, the mode, the duration and the ¡effect upon the estate of Phillips of the user of the right of way for the benefit of the estate of Eaton. This presumption, viz., that the ¡user was under a claim of right, and, therefore, adverse, is a rebut-able presumption, but there is no evidence in the case to rebut it. That presumption being entertained, there is clearly nothing in the case which militates against the full force of the final and conclusive presumption in favor of the plaintiff, viz., of a grant of the easement Tor which she contends.

That the easement thus established was appurtenant to the estate of Yearon Eaton, and passed by his deed to the plaintiff, which expressly included the appurtenances of the estate conveyed, admits of no question. (See the cases already cited and Huttemeier v. Albro, 18 N. Y. 48; Newman v. Nellis, 97 id. 285; Mayor of New York v. Law, 125 id. 380.)

If these views are correct, it follows that the exception of the plaintiff to the finding of fact, to the effect that the user of the right of way by Eaton was by virtue of a license merely, was well taken, as being without evidence to support it, and contrary to the presumptive evidence of a grant, and the conclusion of law based upon such finding must fall with it.

The judgment should be reversed and a new trial granted.

Lewis, Macombee and Haight, JJ., concurred.

Judgment appealed from reversed and a new trial granted, with costs to abide the final award of costs.


text:
    Alfred Willoughby and William Kincaid, Respondents, v. The Fredonia National Bank, Appellant.

      False representations — lien, under a mortgage, upon land in another State to secu/re future indorsements — burden of proof on the plaintiff.

    Where the plaintiff, in an action brought to recover money alleged to have been paid to the defendant under the inducement of false representations, seeks to recover upon the theory that the defendant falsely represented that he had a lien upon land in another State, purchased by the plaintiff, by force of a mortgage to secure future indorsements, given by a former owner of the land, stating that certain promissory notes claimed to be covered by the mortgage were made before the plaintiffs purchase of the land, whereas they were in fact made after such purchase, the burden is upon the plaintiff to prove that under the law of the State in which the land is situated no lien could exist, under such a mortgage, by reason of notes made after the mortgagor ceased to own the land.
    It is the law of the State of New York that a mortgage to secure future advances or indorsements is valid; is within the Recording Act; is notice to subsequent purchasers and puts them upon inquiry as to the amount of advances or indorsements already made; and it is only by notice to the mortgagee, or other holder of the mortgage, that still further advances or indorsements which shall be equally a lien on the mortgaged premises can be prevented.

      Appeal by tbe defendant, the Fredonia National .Bank, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of Chautauqua county on the 7th day of June, 1892, upon the report of a referee.

      O. W. Johnson, for the appellant.

      J. G. Johnson, for the respondents.
   Dwight, P. J.:

The action was to recover money paid to the defendant by the plaintiffs, induced thereto, as alleged, by certain false representations made by the former to the latter.

The narrative of the case leading up to the allegation of false representations is in substance as recited in the complaint and, somewhat more at large, as' follows: In and before the year 1879, one Pemberton was the owner of an undivided interest in a small tract of oil land situated in McKean county in the State of Pennsylvania. He was a borrower of money, and, in January of that year, he gave to one Skidmore a mortgage on the interest mentioned to secure the payment of all notes, to the amount of $2,500, “indorsed or to be indorsed” by Skidmore for him. In February of the same year Skidmore assigned the mortgage to the defendant as collateral security for the payment of all notes so made and indorsed, which should be discounted by it, and in March the mortgage and assignment were both recorded in the proper office in McKean county.

In February, 1881, Pemberton and wife united with the other tenants in common of the property in a conveyance of the entire estate to the plaintiffs. About three years later the defendant, by letter of its cashier, called the attention of the plaintiff Willoughby, who was a resident of Bradford county, to the fact that it held the mortgage; informed him that it also held notes of Pemberton, secured thereby and unpaid, to the amount of $1,250, and intimated that it might become necessary to resort to a foreclosure of the mortgage for their collection. The plaintiffs seem to have paid no attention to this letter until nearly two years later, when, having a favorable opportunity to make sale of the land, they applied to the defendant to obtain a discharge of the mortgage, and it was at that time that, as the complaint alleges, the representations were made to the plaintiffs which are the basis of this.action. Those representations, as charged, were to the effect, only, that notes made by Pemberton and indorsed by Skidmore were in the hands of the defendant unpaid to the amount, with interest, of $1,493.50, and that the defendant had a lien on the land above mentioned for that amount. No other representations than those are alleged in the complaint, and it is these representations alone which it is alleged the plaintiffs believed to be true, and in reliance upon which they consented to and did pay the sum demanded by the defendant as a condition of discharging the mortgage. That was the sum of $746.75, or one-half of the amount, principal and interest, which the defendant claimed to be due on the notes.

The above are, moreover, all the representations which are negatived by the complaint, and this is done by an allegation as follows : That in fact and in truth the said notes so made by said Pemberton and indorsed by said Skidmore had been before that time fully paid,. and that the said mortgage was not a lien on the said land for any sum.”

Here was plainly but one representation of a matter of fact alleged to have been made and charged to have been false, vizs, that the notes in question were unpaid. The other representation charged, viz., that the mortgage was a lien for the amount of those notes, was the statement of a conclusion of law, dependent apparently upon the fact previously asserted that the notes were unpaid. But that fact was fully and concededly established by the evidence, and so it was found by the referee. Accordingly, the plaintiffs shifted their ground on the trial, and "Willoughby was permitted to testify that the representation made by the officers of the defendant at the time the money was paid, and upon which he relied in making such payment, was not, as alleged in the complaint, that the notes were unpaid, but that they were given before the conveyance of the land by Pemberton and his cotenants to the plaintiffs. 'That representation, if it was made, was contrary to the fact, as was plainly shown by a written statement of the notes, showing their several dates and a computation of the interest on each note, which was given to Willoughby by the cashier in the same interview in which, a§ he testified, the representation was made to him that they were all given before tbe conveyance of tbe land to the plaintiffs. The dates shown by the written statement were from July, 1881, to May, 1882, while the conveyance was made in February, 1881.

When the first question was put to Willoughby, as a witness, which pointed to evidence of this character, it was objected to by counsel for the defendant, as incompetent under the pleadings. The objection was a good one, and should have been sustained, if it was insisted upon; but the record shows no ruling on the objection, and no exception. The question was answered, and was followed without further objection, by an extraordinary series of leading questions, by means of which counsel were finally able to draw from their own client — apparently against his own impressions — his assent to the propositions embodied in their questions, to the effect, namely, that the representation made to him by the officers of the bank, was the one last above stated; that he believed such representation to be true, and relied upon it, and that he would not have paid this money for the discharge of the mortgage, except for such belief and reliance; all of which was in direct contravention of the allegations of the complaint in that regard. It is difficult to believe that counsel for the defendant would have submitted, without objection, to such a course of examination of the witness if they had not supposed that they had already an available objection and exception which covered all this class of testimony.

Upon this testimony, though contradicted by the officers of tbe bank who were present, the referee found that the defendant represented to the plaintiffs that the notes held by it were made by Pemberton while he owned the land. The finding was not secwndum allegata, nor was it sustained by proof which seems to us at all satisfactory. The referee also found, as upon a question of- fact, that the representation that the mortgage was a lien on the mortgaged premises for the amount of the notes of $1,250, was untrue, but he repeats the same finding as á conclusion of law, and with an addition which plainly shows the ground -upon which the finding was based; the addition is that Pemberton after the conveyance by him could create no debt or lien upon the land.”

This conclusion of law, which is the only one found in the report (except that the plaintiffs are entitled to judgment), involves, we think, the error into which the learned referee fell, and which must be fatal to tbe judgment. Had tbe mortgage been given on property situated in tbis State, tbe finding would bave been manifestly erroneous. Because it is perfectly well settled as tbe law of tbis. State that a mortgage to secure future advances or indorsements is. valid; is within the Recording Act; is notice to subsequent purchasers, and puts them upon inquiry as to tbe amount of advances-, or indorsements already made; and that it is only by notice to tbe mortgagee, or other bolder of tbe mortgage, that still further advances or indorsements which shall be equally a lien on tbe mortgaged premises, can be prevented. See Ackerman v. Hunsicker (85 N. Y. 43) and tbe cases cited. In most of these cases tbe doctrine rests-upon tbe effect of tbe Recording Act, but in the case of Shirras v. Caig (7 Cranch, 34) tbe doctrine is declared to tbe full extent by Chief Justice Maeshall, without regard to recording acts, and upon equitable principles of the common law.

There is no finding or evidence in the case of notice to the: defendant of tbe conveyance to tbe plaintiffs until after tbe discount of tbe notes in question. Neither is there any finding as to what, is tbe law of tbe State of Pennsylvania, either by statute or by the-decisions of its courts, in respect to tbe lien of mortgages of tbe character in question. We must assume, therefore, that tbe conclusion of tbe referee “ that Pemberton after tbe conveyance by him could create no debt or lien upon tbe land,” was based upon an acceptance of tbe proposition which is urged by counsel for the respondents, on the argument of this appeal, that it was incumbent upon the defendant to show that tbe law of Pennsylvania was similar in effect to that of this State, before it could assert that tbe mortgage was a lien for the notes in question. And just here is tbe error above referred to, viz., tbe bolding, in effect, that tbe. affirmative was with tbe defendant to show that tbe ben in question, existed. Plainly, the contrary was true. It was tbe plaintiffs whe alleged that the defendant’s representation that it bad a lien for tbe amount of tbe three notes, was false. The burden was upon them to prove it so, and if its truth or falsity depended upon tbe laws of Pennsylvania, it was incumbent upon them to make proof of those, laws. Tbe rule, which lays tbe burden of proof on tbe party who. alleges a fact, applies to no case more strictly than to one in which, tbe allegation is of fraud or false representations.

For tbe error pointed out, tbe judgment should be reversed and a new trial granted.

All concurred.

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


text:
    In the Matter of the Final Judicial Settlement of the Accounts of Frank D. Cook, as Administrator, with the Will Annexed, of James Loomis, Deceased.

      .Legacy paid to the legatee, as directed by a final decree — application, by cm assignee of the legacy, to open the final dewee — validity of the assignment — where triable.

    .An administrator, with the will annexed, paid a legacy to the legatee, in accordance with the directions oí the surrogate’s decree finally settling his accounts, and, by a supplemental order, was fully discharged; thereafter, an assignee of the legacy applied to the surrogate, by petition, to open and amend tne final ■decree by substituting therein a direction that the payment of the legacy oe made to him instead of to the legatee; the validity of the alleged assignment being positively denied by the legatee, on the return of the order to show cause why the application should not be granted, the surrogate denied the application.

      Meld, that the application was properly denied, on the grounds of laches on the part of the petitioner; of want of notice to the administrator before the money was actually paid by him to the legatee, and. because the surrogate had no jurisdiction to try the question as to the validity of the assignment.
    'That it was not a case in which the decree should have been opened in order to admit the petitioner as a party to it, and then the accounting be suspended until the question of the validity of the assignment could have been determined in a proper tribunal.

      .Semble, that the remedy of the petitioner was by action against the legatee, or against the legatee and the administrator, if, as it was intimated in the petition, there was ground for alleging that the two were in complicity in procuring the direction contained in the decree for the payment of the legacy to the legatee, notwithstanding a valid assignment had been made thereof, without giving an opportunity to the assignee to be heard.
    Appeal by Charles W. Fuller, petitioner, from an order of the Surrogate’s Court of Ontario county, entered in the office of said .surrogate on the 30th day of September, 1892, denying his application to open and amend a decree finally settling the accounts of the administrator above named.

      Moses Shire, for the appellant.

      D. G. La/pham, for the respondent Cook.

      G. D. Read, for the respondent Rockwell.
   Dwight, P. J.:

The testator, James Loomis, late of Ontario county, died many years ago leaving a will by which he appointed his widow, Nancy Loomis, and one Charles Shepard his executors, and gave a legacy of $900 to the respondent, Adin Rockwell, payable only after the death of the widow. That event occurred in 1891. Charles Shepard, who seems to have been the sole acting executor, died in 1867, and was succeeded, first, by Charles E. Shepard, who died in 1886, and, afterwards, by the respondent Cook, as administrator with the will annexed of the estate of James Loomis.

In April, 1892, Cook made his petition to the Surrogate’s Court of Ontario county for a final settlement of his accounts as such administrator; an accounting was had and a decree made, accordingly, which, among other things, directed the payment to the legatee, Adin Rockwell, of the legacy before mentioned. That payment, with all others directed by the decree, was duly made, and, by a supplemental order, Cook was fully discharged from duty and liability as such administrator.

Thereafter, and on the 20th day- of September, 1892, the appellant, Charles ~W. Fuller, filed in the same court his petition praying for an order requiring Cook to show cause why the decree above mentioned should not be opened and amended so as to direct him to pay to the petitioner instead of Adin Rockwell, the legacy in question. In his petition Fuller alleged that on the 1st day of November, 1882, Rockwell duly assigned the legacy to him, and that immediately upon the receipt of such assignment he had caused written notice thereof to be given to Charles Shepard, one of the executors of the will of Loomis. The same petition, in tracing the successive administrations of Loomis’ estate, shows, as the fact was, that Charles Shepard died in 1867, fifteen years before the assignment was made; this contradiction of statements is nowhere in the case corrected or explained. The petition further shows that in 1887 Cook, as administrator, etc., of Loomis, instituted proceedings in the same court to compel an accounting by the executors of Charles E. Shepard, deceased, his predecessor in such administration, and that in the account filed by them — in the schedule which gave the names of persons interested in the estate, was the following entry: “ Adin Rockwell of Rochester, N.T., Charles ~W. Fuller, assignee of interest of Adin Rockwell, residence unknown.” The petition also showed that in the account of Cook, filed for settlement in April, 1892, is the statement: “ It has been reported that said Adin Rockwell has assigned his interest in said estate, but I have no knowledge respecting the truth or falsity of said report, and no information as to the name or residence of the assignee, if one exists.” The foregoing are all the matters stated in the petition which, tend to charge the respondent with notice of the assignment.

The petition was answered by Cook, the administrator, and also by Rockwell, the legatee, who, though not cited under the order to show cause, appeared on his own motion, as he had a right to do. (Code Civ. Pro. § 2731.) Cook denied that he had any notice that the legacy had ever been assigned, except by mere rumor, which did not give the name of the supposed assignee; alleges that he made diligent inquiry to ascertain the truth of the report, and was unable to obtain any further information oh the subject; alleges that he never saw the entry in the account filed by the executors of Charles E. Shepard, nor had his attention called to it. Rockwell answers, admitting that he executed an assignment of the legacy to Fuller, but impeaching it for fraud, deceit and duress. No evidence was taken on either side, and the case stands on the undisputed allegations of the petition and the two answers.

On the case thus presented, we think the decree of the Surrogate’s Court denying the prayer of the petitioner was clearly right, on three grounds: (1) for laches on the part of the petitioner; (2) for want of notice to the administrator before the money was actually paid by him to the legatee; (3) because the surrogate had no jurisdiction to try the question of the validity of the assignment.

The laches of the petitioner are shown by the fact that for ten years he made no attempt to give notice of his assignment, or to present his claim, except to an executor who had been dead for fifteen years. If, as he says¿ he did not know that the deceased executor had been succeeded in the administration of the estate, that of itself shows laches, because the fact could have been learned at any time, on application to the surrogate of the proper county.

We also agree with the learned surrogate that the case fails to show such notice of an assignment to the administrator, as to charge him either with bad faith or neglect of duty in failing to cause the petitioner to be cited to the final accounting. In the absence of such a case against the administrator, a conclusive answer to the petition is found in the fact that the validity of the assignment was positively denied on the return of the order to show cause. The only purpose for which it was sought to open the decree, was to substitute a direction for the payment of the legacy to the alleged assignee. This, of course, could not be done until the validity of the assignment was established, and the surrogate had no jurisdiction of that issue. Code Civ. Pro. §§ 2718, 2743; In re Brown, 3 N. Y. Civ. Pro. Rep. 39; Strong v. Strong, 3 Redf. 481; In re Martine’s Estate, 11 Abb. N. C. 54.

Nor was this a case in which the decree should have been opened in order to admit the petitioner as a party to it, and then the accounting suspended until the question of the validity of the assignment could have been determined in a proper tribunal. For here’ not only was the accounting completed, but the money in the hands of the administrator had been paid out in accordance with the directions of the decree. This, it is plain, must be a complete defense to the administrator against the liability to pay it again,, unless, as we have said, he has been guilty of bad faith or neglect of official duty in procuring the settlement and the decree to be made.

The remedy of the petitioner seems to be by action against Rock- • ¿well, or against Rockwell and Cook, if — as is strongly intimated in the petition — there is ground for alleging that the two were in complicity in procuring the direction of the decree for the payment of the legacy to Rockwell, notwithstanding a valid assignment, without giving an opportunity to be heard.

On the case made by the findings in the Surrogate’s Court, the order was right, and should be affirmed.

All concurred.

Order of the Surrogate’s Court of Ontario county appealed from’ affirmed, with ten dollars costs and disbursements.