text:
    Charles M. Titus, Respondent, v. Charles F. Poole and Others, as Executors, etc., of Edward V. Poole, Deceased, Appellants.

      Sale of bank stock — breach of warranty — evidence — transcript from the books of .. a foreign bank — statement by a witness of the result of their examination.

    On the trial of an action brought to recover damages for a breach of warranty on the sale or transfer to the plaintifi by the defendants’ testator of what purported to be a certificate of stock in a bank of the State-of Pennsylvania, evidence was given sufficient to justify the jury in finding that the defendants' testator positively asserted that the alleged bank was organized under the laws of the State of Pennsylvania, that the stock was worth 100 cents on the dollar, and that he, as one of the first stockholders, was in a position to know its value, wdiile the plaintifi was not, and that it was a good, high dividend paying stock.

      Held,, that no particular phraseology was necessary to constitute a warranty, but that any assertion of the testator concerning the stock, if relied upon by the plaintiff and understood by both parties as an absolute assertion and not merely as the expression of an opinion, would amount to a warranty ;
    That the evidence was sufficient to sustain a finding of the jury that there was an express warranty, and on proof disclosing a breach thereof the plaintiff was entitled to recover the difference between the value of the stock as represented and its value as it was.
    Semble, that if there had been no express warranty, as the certificate which was transferred to the plaintiff purported to be a certificate of stock in a bank organized under the laws of Pennsylvania, and was sold as such, there was an implied warranty on the part of the seller that the instrument was genuine and what it purported to be,
    The evidence established the fact that the so-called bank in question was never incorporated under the laws of Pennsylvania. A notice of intention to use copies of entries in the original books of the bank had been given, as provided by section 930 of the Code of Civil Procedure relating to the use as evidence of copies from the books of a foreign corporation, and a copy was verified as provided by section 931 of the Code; and it appeared that the hooks were-within the State of New York and practically in tlie hands of the defendants. The court admitted in evidence, on behalf of the plaintiff, a transcript from the-books of the bank.

      Held, that there was no error in the admission of the evidence.
    If original documents are inconveniently voluminous or numerous, and the result, to be gathered from them is tlie material fact, a qualified witness who has examined them may testify to the result subject to cross-examination on details ; and an abstract or summary, made by him out of court with the originals before him, and which he testifies is correct, may be received in evidence instead of requiring the originals.
    Appeal by tlie defendants, diaries F. Poole and others, as executors, etc., of Edward Y. Poole, deceased, from a judgment of tlie Supreme Court in favor of the plaintiff, entered in. tlie office of tbe clerk of Tompkins county on the 12th day of March, 1892, upon a verdict rendered at the Tompkins Circuit, and also from an order entered in said clerk’s office on the 11th day of March, 1892, denying the defendants’ motion for a new trial made on a case and exceptions.

      Devoid M. Deem, for''the appellants.

      F. F. Tibbetts and S. D. Ilallidcvy, for the respondent.
   Martin, J.:

This action was for breach of warranty on the sale or transfer to the plaintiff of what purported to he a certificate of fifty shares of stock in the Plome Savings Bank of South Waverly, Penn. In effect it was alleged in the complaint that the defendants’ testator purchased of the plaintiff certain real estate at the agreed price of' $9,000; that he transferred to the plaintiff in part payment therefor what purported to be fifty shares of $100 each of the stock of' an alleged bank called the Home Savings Bank of South Waverly ; that the testator, by express words, and by implication, warranted and represented that such scrip or alleged certificate of stock was in all respects what on its face it purported to be, and that all the statements’ and representations printed and written upon it were true; that he further expressly represented and warranted that it was a regular dividend paying stock ; that it was issued by a State bank regularly organized under the laws of the State of Penn- ■ sylvania; that it (the bank) had a paid-up capital of $100,000 ; that the stock was worth 100 cents on the dollar; that he was one of the first stockholders and had owned the stock for several years; and that the testator at the time also made various other statements tending to show that said certificate was good and all right.

It was then alleged that none of the foregoing statements or representations made by the testator were true, but that the stock was worthless, and judgment for $5,000, and interest from February 10, 1883, was demanded.

The defendants’ answer, so far as material to the questions raised upon this appeal, was a denial of the alleged warranty, and an allegation that the plaintiff’s cause of action was barred by the short Statute of Limitations because the action was not commenced within six months after the presentation and rejection of the plaintiff’s claim.

On the trial the plaintiff proved that he sold to the defendant’s testator certain real estate for the price or sum of $9,000 ; that he accepted the alleged certificate of stock for $5,000 as part payment therefor; that when the contract between the parties was made the defendants’ testator stated and represented to him that the so-called bank, the stock of which was apparently represented by the certificate, was a bank regularly organized under the laws of the State of Pennsylvania and had savings bank privileges; that the stock was good, worth 100 cents on the dollar, a high dividend paying stock and all right; that he was one of the original stockholders; that the capital stock was $100,000 and’was all paid irp ; and that thereupon the plaintiff said: If this stock is all right, as you say, we will make the trade or deal.”

This evidence was uncontradieted. The evidence also disclosed that the so-called bank, the alleged stock of which was thus transferred, was never incorporated under the laws of the State of Pennsylvania, and that from 1874 until the time of the trial only six dividends were declared. It also tended to show that' none of the dividends declared were earned, but were in fact paid out of the capital invested in the enterprise; that the stock was not fully paid up; that the assets of the concern were insufficient to pay its liabilities; and that it failed in 1887.

Proof was given of the sale of what purported to be the stock of this institution at about par. í>ut each of the witnesses who testified to having purchased or sold it, testified that he supposed the bank was regularly organized under the laws of the State of Pennsylvania, and would not have purchased the stock if he had known it was not. The evidence also tended to show that the stock was in fact worthless; that although it had been sold at par, still, that it would not have brought that price or had any market value if the facts as to the situation of the alleged bank had been known and understood.

That the representations made were material, and relied upon by the plaintiff, there is no doubt. Upon this evidence the court submitted to the jury the questions whether the warranty was made, whether the plaintiff relied upon it in making the exchange, and if so, the amount of damages sustained by him. The jury found for the plaintiff, and awarded him $5,000, and interest from the time of such sale.

The appellants contend that the evidence was insufficient to justify the court in submitting the question of warranty to the jury, and that it erred in denying their motion for a nonsuit. We think this contention cannot be sustained. No particular phraseology was necessary to constitute a warranty. Any assertion of the testator concerning this stock, if relied upon by the plaintiff, and understood by both parties as an absolute assertion, and not merely the expression of an opinion, would amount to a warranty. The evidence was amply sufficient to justify the jury in finding that the defendants’ testator positively asserted that this alleged bank was organized unller the laws of the State of Pennsylvania; that the stock was worth 100 cents on the dollar, and that he, as one of the first stockholders, was in a position to know its value, while the plaintiff was not, and that it was a good, high dividend paying stock. This, we think, was sufficient to sustain the finding of the jury that there was an express warranty, and as the proof disclosed a breach thereof, the plaintiff was entitled to recover the difference between the value of the stock as represented, and the value as it was.

Moreover, if there had been no express warranty, as the certificate which was transferred to the plaintiff purported to be a certificate of stock in a bank organized under the laws of the State of Pennsylvania, and was sold as such, there was, we think, an implied warranty on the part of the seller that the instrument was genuine and what it purported to be. In Ledwich v. McKim (53 N. Y. 307) it was held that upon the sale and assignment of a non-negotiable written instrument there is an implied warranty of title in the assignor, and upon failure he is liable. In the opinion it is said: The seller warrants the genuineness of the instrument, and that it is what it purports to be,” citing Gurney v. Womersley (28 Eng. L. & Eq. 256); Thrall v. Newell (19 Vt. 202). In Ross v. Terry (63 N. Y. 613) it was held that, as a general rule, there is implied from the sale of a bond or other security, a warranty on the part of the vendor that it is a valid and subsisting security for the amount expressed. In Littauer v. Goldman (72 N. Y. 507) the doctrine that upon the transfer of a chose in action there is an implied warranty, not only of title, but that the instrument is genuine, is again recognized. In Delaware Bank v. Jarvis (20 N. Y. 226, 229) the rule that a vendor of a chose in action, in the absence of express stipulations, impliedly warrants its legal soundness and validity, is asserted. (See, also, Webb v. Odell, 49 N. Y. 583 ; Mandeville v. Newton, 119 id. 10, 14.)

In this case, however, there was, as we have already seen, an express warranty, not only as to the genuineness of the certificate and that it was what it purported to be, but as to its value and quality. We are of the opinion that the case was properly submitted to the jury, and that its verdict should be upheld.

That the plaintiff on proving the warranty and a breach thereof was entitled to recover the damages awarded is quite manifest. The proof showed quite conclusively that the pretended stock had no actual value, and that upon the facts being understood, it would have had no market value. The appellants not having in any way challenged the amount of the recovery, no further consideration of this question seems necessary.

The appellants also contend that the plaintiff’s claim was barred by the short Statute of Limitations. On a former appeal in this case that question was examined and decided adversely to such contention. (Titus v. Poole, 60 Hun, 1.) That decision must be regarded as conclusive upon this question.

The only other questions raised by the appellants relate to the rulings on the trial. Benjamin Kuykendall was called as a witness by the plaintiff, and on the cross-examination was asked the following question : “ Q. Now, I ask you the question if there was a debt came to your hands against the plaintiff here, Mr. Titus, as an asset in favor of the Home Savings Bank to you as receiver, for any cause whatever, whether by reason of overdraft, check or other things ? ” This question was objected to “ as incompetent,” whereupon the court said : “ I don’t see how it is competent. I will exclude it.” To this the defendants excepted. The appellants claim that this evidence was admissible to establish the solvency of the Home Savings Bank, and to meet the evidence which had been given by the plaintiff to show that both the bank and its president, who seems to have absorbed the most of its assets, were insolvent. We are unable to see how this evidence was admissible, as it related to a transaction or situation which existed in 1887, four years after the transaction in question. The question that liad been litigated, and to which the proof related that this evidence was offered to answer, was as to the situation in 1883 when the transaction occurred, and the court had already ruled that a witness for the defendants might testify to that fact if it existed in 1883. Moreover, the proof was to the effect that the bank and its president were both insolvent to the extent that their liabilities exceeded their assets more than $80,000. If the evidence was admissible, we fail to see how its rejection could have harmed the appellants, as it would not have justified any different conclusion as to the fact of such insolvency. Again, the defendants were permitted to prove by the witness William Kirby that the plaintiff had a note for $1,500 discounted at the bank after February 10, 1883, and the plaintiff, on his cross-examination, testified that he had $5,000 of Kirby, the apparent president of the concern, and that it was not all yet paid and that the whole amount was unpaid when the institution failed. We find in this ruling no error which would justify us in disturbing the judgment appealed from.

The appellants also claim that the court erred in admitting in evidence the books of the Home Savings Bank, and the transcript which was allowed to be used on the trial. The notice provided for by the Code of Civil Procedure was given, and the copy was verified as therein provided. (§§ 930, 931.) Besides, the evidence shows quite clearly that the books were within the State of New York, and practically in tlie liands of the appellants. Under these circumstances we find no error in the admission of this evidence. £‘If the original documents are inconveniently voluminous or numerous, and the result to be gathered from them is the material fact, a qualified witness who has examined them may testify to the result subject to cross-examination on details; and an abstract or summary made by him out of court with the originals before him, and which he testifies is correct, may be received in evidence instead of requiring the originals.” (Abbott’s Trial Brief on the Facts, § 21; Greenl. on Ev. § 93; Burton v. Driggs, 87 U. S. [20 Wall.] 125. See, also, Howard v. McDonough, 77 N. Y. 592; Wise v. Insurance Company, 101 id. 637.)

Having considered all the questions presented by the appellants in their brief, and having found nothing which would justify us in reversing the judgment appealed from, it follows that it should be affirmed.

Hardin, P. J., and Merwin, J., concurred.

Judgment and order affirmed, with costs.


source: Caselaw Access Project

author: Martin, J.: Merwin, J.

license: Public Domain

text:
    Robert E. Gregg, Appellant, v. John P. Murphy, Sheriff of Lewis County, Respondent.

      Sheriff — protected by instructions from the party in whose frnor process is issued.

      A party in whose favor.process is issued may give such directions to the sheriff as will not only excuse the sheriff from his general duty, but bind him to the performance of what is required of him
    The evidence in an action brought against a sheriff, to recover damages for his alleged false return, upon an execution in replevin issued to him in favor of the plaintiff — to the effect that he had delivered the property therein mentioned to a third party for the plaintiff, examined and held, to render it manifest that the sheriff in all that he did acted in good faith in accordance with directions given him by the plaintiff or the plaintiff’s attorney, and consequently to afford protection to the sheriff as matter of law, so that he was entitled to have a verdict directed in his favor, (Merwin, J,, dissenting.)
    Appeal by the plaintiff, Robert E. Gregg, from a judgment of the Supreme Court, entered in The office of the clerk of Lewis county on the 27th day of December, 1892, upon a verdict in favor of the defendant rendered by direction of the court at the Lewis Circuit.
    The action was brought to recover damages for the alleged false return by the defendant, as sheriff of Lewis county, of an execution in an action of replevin in which the present plaintiff was defendant, and one Bronson A. Shead was plaintiff, issued in favor of the present plaintiff, and for the conversion of the property alleged to have been taken under the execution.
    The action was commenced July 23, 1892. In the complaint it is alleged that, on the 10th of June, 1891, in an action of replevin in the Supreme Court, brought by one B. A. Shead against the plaintiff in the present action, this plaintiff recovered judgment against Shead for the possession of certain chattels, to wit, one black mare, one pair of bob sleighs, one four-spring wagon, one three-spring wagon, one cutter, two buffalo robes, in case delivery could be had, and if not, then for the value, the sum of $142; that this judgment was duly docketed in Lewis county on the 12th of June, 1891, and on the 25th of July, 1891, an execution thereon in due form was issued and delivered to the defendant, the sheriff of Lewis county; that the defendant, on or about the 25th of July, 1891, under said execution, took possession of said property, then being within his county, and has ever since retained possession of the same, contrary to the direction of the execution; that he has neglected and refused to deliver the same to the plaintiff, though often requested so to do, but has falsely returned upon said execution that he had delivered the same to one W. S. Waterman for the plaintiff; that he has not so delivered the same, or any part thereof; that he has retained the same and converted it to his own use without the authority or consent of plaintiff, and to his damage in the sum of $142, with interest. For that sum judgment is demanded.
    In the answer it is, among other things, stated that the defendant, at the request of plaintiff’s attorney, authorized and directed Waterman to take the property, and then, by direction of plaintiff’s attorney, made the return referred to in the complaint.
    The execution in question was received by the defendant on the 23d of July, 1891, and on the twenty-fifth of July he, under it, obtained possession of the property. On the twenty-seventh of July, he wrote the plaintiff’s attorney as follows: “ The property is at Austin’s that you speak of; I was there and got the same in my possession on the 25th of July, Now, what do you want I should do with the same ? ”
    The defendant lived at Lowville, the attorney lived at Watertown and the property was near Pinckney Corners, which was a considerable distance from each of the otner places. The attorney, on the first of August, wrote the defendant that his client was out of the county; that he expected to see him soon and would then write him fully. On the seventh of September, the attorney writes the defendant : “ I had a letter from my client, saying that Austin would not give up the property. Did you take it ? You wrote me you did. Your execution required you to take it and hold it. Your deputy informed me that you left, the horse at Austin’s. That is not right. * * Please write me what you done with the property and where it is, etc., and your bill.” To this the defendant, on September seventh, answered : “ Noav, in regard to the property at Austin’s. I left the horse at Austin’s. The other articles are at Austin’s, all but one Avagon. That is at Barnes’ Corners. I took possession of the goods. Austin said he would give them up if called for. .1 thought it cheaper to leave the horse there than to remove it elsewhere. Write me if you want to meet me there. I will get the property in your hands very quick.”
    On the eighth of September the plaintiff, who was then living at Pulaski, Oswego county, wrote from there to the defendant, saying that he understood he, the sheriff, went to Pinckney to H. S. Austin’s to get some property on an execution delivered to him by Mr, Kearns, and lie had heard that Austin did not give it up, and he wanted to know what there was of it and where the property was. To this the defendant replied, that Austin did not refuse to give up the property, and that he, the defendant, had taken possession of the property, and had it in his possession some time, and wanted to know where he should leave it. To this the plaintiff, as he testifies, replied, “ I wrote him to let Waterman, at Barnes’ Corners, get the property and take it over to John Gregg’s in Rodman;” and he further testifies, “I supposed it was there, and it Avas all right just as he said.” The property was not delivered to Waterman, and on October 1, 1891, Mr. Kearns writes the defendant: “ My client, Robt. E. Gregg, is at Pulaski and is busy. You let Mr. Sylvester Waterman, of Barnes’ Corners, have the property. Write him or deputize him, and he will get it together for Gregg and myself. I don’t want it in the possession of Austin any longer. I will see that your fees as you write me are paid. Waterman being handy there can take care of it better. Please write him at once to take the property. Give him a list of it. You will find it in the execution I sent you. Please don’t delay the matter. I want to sue the sureties, the bail on the bond he gave when he took the property.”
    On the eighth of October the defendant writes to Mr. Waterman as follows:
    “ Mr. Waterman, Dear Sir — Some time ago I took some property of one Harlow Austin, belonging to Robert E. Gregg. Mr. Thomas E. Kearns is Gregg’s lawyer. He writes me that said Gregg wanted you to get together the property, viz.: One black mare, one pair bob sleighs, one four-spring wagon, one three-spring wagon, one cutter, two buffalo robes, all of which is at said Austin’s in your town, except four-spring wagon, which is at Michael Ragen’s, Barnes’ Corners. I have had the same in my possession for eight weeks. Now, get the same together for said parties. You will see I appoint you deputy sheriff for the same work. When, you do the work let Mi*. Gregg and T. F. Kearns know, and charge the same to them. Let me hear from you.
    “ Your truly,
    “ JOHN P. MURPHY,

      “Sheriff Lewis Co”

    “Lowville, Oot. 8th, 1891.
    “ I hereby appoint Sylvester Waterman, of the town of Pinckney, Lewis Co., N. Y., special deputy sheriff to do the work spoke of in the paper attached.
    “JOHN P. MURPHY,
    “ Sheriff Lewis Co., Lowville”

    Upon the same day the defendant writes Mr. Kearns, “ Now, 1 have done as you requested, appointed W. S. Waterman to get the property together. Now, how or what shape can I return execution as it now stands. Let me hear from you.” To this, Kearns, on October ninth, replies : “ Y ours at hand. You return the execution to Clk’s office as execution directs with the following indorsement made thereon‘ The within execution levied upon the following goods and chattels, the property of defendant, this day of , 1891, and delivered to W. S. Waterman for the defendant herein ’ (set out list of property); ‘ the said execution is returned also as being nulla bona as to the collection of the costs therein.’ Put this indorsement on and sign and return. I expect to be at Lowville, and I will pay your fees, $4.63, before long, or will have them sent you. Indorse list of the property on execution, etc., so it will show what you have turned over to Waterman.”
    On the tenth of October the defendant indorsed on the execution and signed the following return: “ The within execution levied upon the following goods this 25th day of July, 1891, and delivered to W. S. Waterman for the- defendant herein, namely .(specifying property in question). The said execution is returned also as nulla bona as to the collection of the costs therein this 10th day of October, 1891.” The execution with this return was filed by the defendant in the clerk’s office on the 12th of October, 1891.
    Mr. Waterman, within a day or two after he received the defendant’s letter, went to Austin’s and to Ragen’s, but could not find any of the property. He saw Austin, and the plaintiff offered to prove that he asked him for the property and its whereabouts and that Austin would not tell him, but upon the objection of the defendant it was ruled out and plaintiff excepted. The next day Waterman wrote the defendant that he had been to Austin’s and could not find any of the property. He never did receive it, and the defendant took no steps to cause a delivery to him.
    There is evidence tending to show that in the fall of 1891' it was in the power of defendant to have delivered the property. In the spring of 1892 the plaintiff called on the defendant to deliver it and asked him where it could be found, but the defendant did not deliver or tell where it was, and took the position that after the return of the execution he had nothing further to do with it. This action was soon after commenced.
    The verdict seems to have been directed upon the theory that the defendant, having given the direction to Waterman at the request of the plaintiff, and made the return in form directed by the plaintiff’s attorney, was absolved from any further responsibility in the matter. Exception was duly taken to the direction of the verdict, and also to the denial of the request of the plaintiff to go to the jury.

      Thomas F. Kearns, for the appellant.

      Merrell, Ryel <& Merrell, for the respondent.
   Martin, J.:

The uncontradicted evidence in this ease disclosed that the plaintiff’s attorney delivered to the defendant, who was the sheriff of Lewis county, an execution in an action of replevin by which he was directed to take possession of and deliver to the plaintiff certain articles of personal property mentioned therein, if they could be found in his county, and collect his fees, together with ninety-two dollars and sixty-seven cents, costs. If they could not be found, then to collect the sum of $112, damages, with his fees and the costs mentioned. In pursuance of this execution the defendant took possession of the property mentioned, and left it with the person in whose possession it was found.

The execution was delivered to the defendant July 23, 1891, and on the twenty-fifth of the same month he took possession of the property under it. On the twenty-seventh he wrote the plaintiff’s attorney in the action in which the execution was issued, stating he had possession of the property and asking the attorney to direct Mm what to do with it, to which the attorney subsequently replied that Ms client was out of the county, that he expected to see him soon and would then write Mm fully.

On the seventh of September the attorney wrote the defendant that he had a letter from Ms client saying that Austin, in whose hands the property was left, would not give it up. To this the defendant, on the same day, replied that he left the horse and other articles at Austin’s, except one wagon, which was at Barnes’ Corners ; that he had taken possession of the goods and Austin would give them up if called for; that he thought it cheaper to leave the horse there than to remove it elsewhere, and then added: Write me if you want to meet me there. I will get the property in your hands very quick.”

On the next day the plaintiff wrote the defendant in regard to the property, stating that he had heard that Austin would not give it up, to which the defendant replied that Austin did not refuse to give up the property; that he, the defendant, had taken possession of it, and had had it in his possession some time, and wanted to know where he should leave it. To this the plaintiff testified that he replied to let Waterman at Barnes’ Corners get the property and take it over to John Gregg. On October seventh the plaintiff’s attorney wrote the defendant to let Sylvester Waterman of Barnes’ Corners have the property; to write him and deputize him to take the property, and he would get it together for Gregg and himself. On the next day the defendant complied with his request by writing Mr. Waterman the facts in regard to the property, and by making him a special deputy to take the property in question for the plaintiff.

On the same day he wrote the attorney, stating what he had done, and asked for instructions as to what return'to make upon the execution then in his hands. In reply, the plaintiff’s attorney directed, him as to the return he should make and indorse upon the execution, and he made it accordingly. The proof also showed that Waterman did not obtain the property.

About five months after the return of the execution the plaintiff’s attorney again asked the defendant' to take possession of the property, to which the defendant in substance replied that he did not see how he could get the property at that time, because he then had no execution in his hands, and stated that if he was to do anything more he should have some papers upon which to take it. No new execution was issued to him, nor did the plaintiff give him any authority as sheriff to take possession of the property, except such as was given by the execution which had already been returned. There was evidence tending to show that neither the plaintiff nor his attorney desired the property, but that they were seeking to obtain a cause of action either against the sheriff or the sureties upon the undertaking given in the replevin action.

A reading of the evidence in this case renders it manifest that the sheriff sought diligently to perform his duty to the plaintiff; that he persistently endeavored to have the plaintiff, or his attorney, or some one authorized by them come to the county to take possession of the property, but failed, as both the plaintiff and his attorney neglected to do so or to provide any way for tlie defendant to deliver the possession of the property, until the letter in which the defendant was asked to deputize Waterman who would obtain possession of the property for them. Thus, the defendant in all he did was governed by the directions of the plaintiff or his attorney, and sought to perform every duty which he owed them in the matter. Under such, circumstances it does not seem to me that the plaintiff was entitled to recover in this action.

That a party, in whose favor process is issued, may give such directions to the sheriff as will not only excuse him from his general duty, but bind him to the performance of what is required of him, there is, I think, no doubt. Both the process and the law which convey authority under it, are for the benefit of the party in whose behalf it is issued, and it is a general rule that a man may dispense with an entire law which is intended for his aid or protection. It follows that he may qualify it, to a greater or less extent, according to his discretion. This is substantially the language of Davies, J., in Root v. Wagner (30 N. Y. 1, 17.) (See, also, Douglass v. Haberstro, 88 id. 611; Crouse v. Bailey, 32 N. Y. St. Repr. 395 ; Corning v. Southland, 3 Hill, 552; Mickles v. Hart, 1 Den. 548.)

As in this case it is quite obvious that the defendant acted in accordance with the directions of the plaintiff’s attorney and in good faith, I think, that as a matter of law, he was protected in his action, and the court was justified, under the evidence, in directing a verdict for the defendant. (Robinson v. Brennan, 11 Hun, 368, 370.)

I have examined the various rulings to which attention has been called by the appellant in his brief, and find in them no error which would justify us in reversing the judgment. Thus I am led to the conclusion that the judgment appealed from should be affirmed.

Harbin, P. J., concurred.

Merwin, J.

(dissenting):

In considering the question whether the verdict for the defendant was properly directed, we are required" to take that view of the evidence which is most favorable to plaintiff.

Under the execution the defendant took possession of the property-, and it was then his duty to deliver it to the plaintiff or to his order. The plaintiff in September gave him directions where and how to deliver it, but they were not followed. If the defendant failed to deliver as the writ required, he was liable to the plaintiff for the damages sustained. (Code, § 102.)

The statement in the return that the property was delivered to W. S. Waterman for the defendant therein was not conclusive as to the fact of such delivery, although the form of the return was dictated by the attorney. The evidence would authorize the finding that the attorney, when he dictated this return, supposed that the property had in fact been delivered by the sheriff to Mr. Waterman, and concerning this the sheriff was in a position to know more than the attorney did. If the attorney on this subject acted under a mistake, it does not conclude the plaintiff any more than giving a receipt would. It was open to explanation. The rights of the sheriff as to his ability to deliver were not affected, as upon the evidence the jury might infer that the sheriff still had control over the property.

But it is argued that the defendant, at the request of the plaintiff, in substance deputized Mr. Waterman to get the property, and that thereupon the defendant ceased to be in any way liable whether Waterman found the property or not.

The process was not placed in the hands of Waterman. That was kept by the defendant and returned. Waterman and the plaintiff had, therefore, specially the right to rely on the correctness of the statements of the defendant in his letter of October eighth, that the property was in his possession and was all at Austin’s, except one article at Ragen’s. Those statements not being correct, can the defendant still say that he is released from all responsibility because at the request of plaintiff he appointed Waterman to get the property together ?

The situation was somewhat peculiar. The property was in one part of the county and the sheriff was in another, while the plaintiff lived in another county and the plaintiff’s attorney in still another. The property had been for sometime, as the defendant stated, in his possession though not in fact transported from the place where it was taken originally by the sheriff, and he wanted to know what to do with it. He had upon taking it left it in the custody of Austin, of whom it is apparent that the plaintiff and his attorney were somewhat suspicious. Prior to October eighth the plaintiff had the right to call on the defendant for actual delivery of the property to him or his agent. And the question is whether it was the understanding of the parties that the giving of the direction to Waterman should relieve ths defendant of all further responsibility, without reference to whether or not there should be actual delivery to Waterman, or, on the other hand, was it the understanding and expectation that the defendant would deliver or cause to be delivered the property to Waterman, and upon such delivery the claim be satisfied ? Neither of these propositions should upon the evidence be affirmed as matter of law.

The question is not whether the defendant is liable for the acts or omissions of Waterman and, therefore, within the purview of the cases cited by the learned counsel for the defendant. The question is back of that, and is whether the defendant has been discharged from the liability which was upon him just’ prior to the arrangement as to Waterman. Whether there was an arrangement to that effect, or whether there was a waiver by plaintiff of an actual delivery, were questions of fact for the jury to pass upon.

If these views are correct, it follows that the case should have been submitted to the jury and a new trial should, therefore, be granted.

Judgment affirmed, with costs.


author: Merwin, J.:

text:
    David P. Lester, Respondent, v. The Delaware, Lackawanna and Western Railroad Company, Appellant.

      Common ca/rrier — goods owned, by one person consigned to another — the own&i's right to delimery dependent upon his right to possession — statements made to a railroad freight agent.

    Certain goods were delivered to P. O’Donnell at Fort Plain, under an agreement between bim and David P. Lester, which provided that O’Donnell was to sell the goods for Lester, and as his agent, in such places as O’Donnell might desire, “ for such length of time as shall be mutually agreeable.” O’Donnell shipped a part of the goods to Norwich, by the D., L. & W. railroad, under a bill of lading in which the consignors and consignees were ‘ ‘ Williams & O’Donnell,” Williams being a man in O’Donnell’s employ. While these goods were in the railroad freight house at Norwich, Lester, who lived at Oswego, telegraphed from there to the freight agent at Norwich: “ Goods consigned to . Williams & O’Donnell belong to me. Deliver only upon my written order. D. P. Lester.” After the receipt of this telegram, the freight agent delivered the goods to Williams & O’Donnell, on their producing and delivering the bill of lading and paying the freight.
    Thereafter Lester brought an action against the railroad company for the conversion of the goods.

      Held, that, as the evidence showed that the agreement, the performance of which required that O’Donnell should have the goods for the purpose thereof, was unabrogated and in full force at the time of the delivery of the goods to O’Donnell by the defendant, the plaintiff was not then entitled to the possession of the goods, and, hence, could not recover as for their conversion, assuming that if the plaintiff was the owner and entitled to the possession of the goods it was the duty of the defendant to deliver them to him although consigned to a different party.
    Before the delivery of the goods by the freight agent at Norwich, the plaintiff made certain statements to the defendant’s freight agent at Oswego in reference to the goods then at Norwich.

      Held, that the defendant was not chargeable with any notice to be derived from such statements, since, as its agent at Oswego had nothing to do with the goods at Norwich, the matter was not within the scope of his agency or employment.
    Appeal by tlie defendant, the Delaware, Lackawanna and Western Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of Oswego county on the 2d day of December, 1892, upon a decision of the court rendered after a trial by the court without a jury at the Oswego -Circuit.
    This action was brought for the conversion of a quantity of personal property. In the complaint it is alleged that the defendant is a common carrier, and that, as such, in December, 1889, it received into its possession a quantity of goods, consisting of about forty-one sets of “Norcross governors and fixtures,” the property of the plaintiff, to be shipped from some point within this State to Norwich, N. Y., and consigned to “ Williams & O’Donnell; ” that the defendant transported the goods to Norwich, and while it there held them the plaintiff notified the defendant that he was the owner of the property, and that the defendant must not deliver the same except upon plaintiff’s written order; that thereafter, and on or about January 18, 1890, the defendant wrongfully and unlawfully delivered the goods to Williams & O’Donnell, and thereby converted the said property to its own use.
    In the answer it is admitted that the defendant is a common carrier, and that, as such, in December, 1889, it received into its possession, certain goods to be delivered to “ Williams & O’Donnell,” and transported the same to Norwich, N. Y., and that a delivery of said goods was made to Williams & O’Donnell. The other allegations of the complaint are denied.

      William Kerncm, for the appellant.

      D. P. Lester, for the respondent.
   Merwin, J.:

On the 1st day of November, 1889, the plaintiff and one P. O’Donnell entered into a written agreement, under seal, as follows :

“This agreement, made this 1st day of November, 1889, between D. P. Lester, of Oswego, N. Y., of the first part, and P. O’Donnell, of the same place, party of the second part, witnesseth: That the party of the second part hereby agrees to sell for the party of the first part, for such length of time as shall be mutually agreeable, a furnace attachment known as ‘Norcross furnace governor ’ and fixtures, acting as the agent for party of the first part to the extent and in the manner herein stated, and in such places as party of the second part may desire, on the following conditions, viz. :
“ Party of the first paid is to furnish party of the second part with said governors at $4.50 apiece, or set, and discs, damper, bars, tubes, &c., at reasonable market value, the party of the second part paying expense of packing, carting, skipping, and the said property to remain the parties of the first part until paid for. Party of the second part is to pay over to party of the first part, as fast as collected, the moneys received for the sale of such governors, &c., on the basis as aforesaid, retaining the balance for his own use and for services in making such sales, and to become personally responsible to party of the first part for the collection of all goods sold by him, guaranteeing the payment thereof; and to render an account every 30 days to party of the first part, showing amount sold, amount of goods on hand and names and addresses of j>ai'ties to whom sold, including persons to whom sold or delivered on approval. All sales to be for cash. The freight on all goods returned to Boston or elsewhere, not sold, is to be paid by party of the second part.
“ D. P. LESTER, [l. s.]
“ P. O’DONNELL, [l. s.] ”

H. D. Trask & Co. of Boston were the proprietors and manufacturers of the Norcross furnace governors. With them, the plaintiff, about the 1st of November, 1889, made an arrangement by which they, on November 11, 1889, shipped to O’Donnell at Fort Plain, N. Y., fifty sets. These reached O’Donnell at Fort Plain about the middle of November and they were received by him under and in pursuance of the agreement between him and plaintiff. Of these O’Donnell sold twenty sets at Fort Plain and received the pay therefor. The balance was shipped by him to Norwich about the twenty-third of December, and this is the shipment referred to in the complaint. The consignors and the consignees in the shipping bill were “ O’Donnell & Williams.” Williams was a man in the employ of O’Donnell.

The plaintiff lived at Oswego, and a day or two before the 6th of J anuary, 1890, he had a talk with Mr. Taylor, the freight agent of the defendant at that place, about the goods in question, but Taylor declined to take any responsibility in the matter. Thereupon, on the sixth of January, the plaintiff sent to the freight agent of defendant at Norwich a telegram as follows :

“ Goods consigned to Williams & O’Donnell belong to me. Deliver only upon my written order.
“ D. P. LESTER.”'

This was received at Norwich the same. day. Upon its receipt, Mr. Boyce, the agent at Norwich, sent a telegram to Mr. Taylor, the freight agent at Oswego, in substance directing him to inform Lester that they could not hold the goods if demanded by Williama & O’Donnell on the bill of lading. This notice or telegram did not, according to the evidence of the plaintiff, reach him till the evening of the ninth of January.' On the tenth of January the plaintiff mailed a letter to Mr. Boyce, stating that he was the owner of the goods and desired them to be reshipped to Oswego and that he would advance the freight if desired. He also offered to furnish evidence of his- right to have possession. This letter reached Mr., Boyce on the eleventh of January. In the meantime, and on the ■seventh or eighth of January, O’Donnell & Williams called at the freight office ■ for the goods and were told that they would not be delivered unless they produced the bill of lading or shipping bill. 'They were also told by the freight agent that he had received from D. P. Lester of Oswego a telegram to hold the goods, and they replied that they had had some difficulty with him, but they would pay for the goods or the matter would be all straightened out. Afterwards, and on the tenth of January, O’Donnell & Williams produced the bill of lading or shipping bill, delivered it to the defendant’s agent, paid the freight, and the agent thereupon delivered to them the goods. This was before the letter of plaintiff of tenth of January was received. O’Donnell or O’Donnell & Williams upon receiving the goods went to selling them at Norwich and sold and delivered there twelve sets, and the balance O’Donnell took to Syracuse and sold them there later on in the winter or spring. This action was commenced on January 22, 1890. On the 18th of February, 1890, O’Donnell paid the plaintiff $144 in payment for the thirty-two sets sold by O’Donnell at Fort Plain and Norwich. This sum is arrived at by taking the price stated in the contract. That leit eighteen sets unaccounted for. The recovery here is for the value of those at five dollars a set, with interest from January 10, 1890.

In Western Transportation Co. v. Barber (56 N. Y. 552) it is said by Judge Grover that a bailor can confer upon his bailee no better title than he has himself, except in cases of negotiating bills •of lading and like cases. If the owner demands the property of the •bailee and he refuses to deliver it to him, he is at once liable to him in an action for its conversion.” A similar view is taken by other authorities. (Angell on Carriers, § 335; Hutchinson on Carriers, § 407 ; Story on Bailments, § 450 ; Wilson v. Anderton, 1 Barn. & Adol. 450 ; Rogers v. Weir, 34 N. Y. 471.) In some of the authorities it is said that the remedy of the bailee for protection against different claimants is through a bill of interpleader.

Assuming then that if the plaintiff was the owner and entitled to the possession of the goods, it was the duty of the defendant to deliver them to him, though consigned to a different party, the question then is, has the plaintiff shown himself to have been the owner and entitled to the possession at the time he gave the notice on the sixth of January ? There is evidence tending to show that the plaintiff was the owner, but was he entitled to the possession ? The goods were received by O’Donnell under tlie agreement of November 1, 1889. He then became the possessor for the purposes of the agreement and the possession was necessary in prder to carry out the evident purpose of the agreement. This agreement, for aught that appears, was in full force on the 6th of January, 1890, when plaintiff sent the telegram to defendant’s agent. O’Donnell, who was a witness for plaintiff, testifies that it was then and afterwards in force, and this the plaintiff, in his evidence, does not deny. O’Donnell, immediately after receiving the goods from defendant, went on in his usual way, sold and delivered twelve sets, and these the plaintiff, on the eighteenth of February, received the pay for from O’Donnell at the price named in. the agreement, although the value in fact was more. This clearly indicates that the contract was considered to be in force after the defendant’s delivery. That being so, the' plaintiff had, I think, no right to treat the delivery by defendant as a conversion. The plaintiff had a right to terminate at pleasure the agreement, but he had not done so.

The defendant is not chargeable with any notice to be derived from statements made by the plaintiff to the defendant’s freight agent at Oswego before the plaintiff sent the telegram on the sixth of January. The agent at Oswego had nothing to do with the goods at Norwich. That matter was not within the scope of his agency or employment.

The plaintiff, in his telegram, did not demand possession, and the letter of plaintiff was not received until after the delivery to O’Donnell.

We think that the plaintiff failed to show a conversion by the defendant and, therefore, the judgment should be reversed.

Hardin, P. J., and Martin, J., concurred.

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


author: MkewiNj J.:

text:
    The People of the State of New York ex rel. Leroy J. Brooks, Respondent, v. Charles H. Watts, Appellant.

      Town excise commissioner — the oath under chapter 163 of the Lanes of 1890 may be taken before the town clerk — time of filing — mcancy in office — effectvof chapter 569o/1890.
    The test oath required by section 3 of chapter 163 of the Laws of 1890, to be made and filed by a town excise commissioner, that he is not interested in the manufacture or sale of liquors, can properly be taken before the town clerk.
    The provision of that act, that the oath therein prescribed shall be taken before “an officer duly authorized to take the acknowledgment of deeds,” is directory,. and does not prevent the oath being taken before any officer authorized to administer oaths.

      Semble, that an oath under said act, chapter 163 of 1890, taken by a person duly elected to the office of commissioner of excise after the passage of the act, is not open to the objection that it was filed too late, if filed at any time before proceedings are taken to declare a vacancy in the office.

      Semble, that any defect or omission in regard to the official bond or oath of a person duly elected to the office of town excise commissioner, at most makes liis title to the office defeasible, and affords cause for forfeiture of the office, but it does not create a vacancy — that can only be effected by a direct proceeding for that purpose.

      Semble, that the Town Law (Chapter 569 of the Laws of 1890) was not designed to .be retroactive, and that the provisions of section 51 thereof, in reference to vacancies in office by reason of the neglect or omission of a person elected to a town office to make and file an oath of office and bond, were not intended to change the rule on the subject as it existed under the Revised Statutes.
    Appeal by the defendant, Charles H. Watts, from a judgment of the Supreme Court, entered in the office of the clerk of • Chenango county on the 20th day of March, 1893, upon a verdict rendered at the Chenango Circuit directed by the court in favor of the relator and against the defendant; also from an order entered in said clerk’s office on the 11th day of March,. 1893, denying a motion for a new trial made upon the minutes.
    The action was brought to remove the defendant from the office of excise commissioner of the town of Norwich. The judgment was that the defendant “ was guilty of usurping and intruding into and unlawfully holding and exercising the office of excise commissioner of the town of Norwich, Chenango county, N. Y., and that he be. ousted and excluded therefrom.”

      John W. Church and W. B. Leach, for the appellant.

      Lloward J. Newton, for the respondent.
   MkewiNj J.:

At the annual town meeting of the town of Norwich on the 17th day of February, 1891, the relator, LeRoy J. Brooks, was duly elected to the office of coinmissioner of excise. This was shown by the record of the proceedings of the town meeting signed by the officers who presided at the meeting and.by the town clerk and filed in the office of the town clerk. (2 R. S. [8th ed.] 885, § 19; Matter of Baker, 11 How. Pr. 431; People v. Zeyst, 23 N. Y. 141.)

On the 23d of February, 1891, the relator took and filed with the town clerk the constitutional oath of office. He also at same date executed and filed a bond in accordance, as he claims, but which defendant disputes, with the provisions of chapter 444 of the Laws-of 1874, as amended by chapter 459 of the Laws of 1886. On the 13th of July, 1891, the relator filed with the town clerk an oath in form as required by section 3 of chapter 163 of the Laws of 1890. This was sworn to before the town clerk. The defendant claims that the town clerk did not have authority to administer the oath and that it was filed too late. Another oath, sworn to before a notary public, was filed on the 3d of June, 1892. This, the defendant claims, is in form defective and was filed too late.

The relator, upon filing his oath and bond on the 23d of February, 1891, entered upon the duties of the office and so continued until the 6th of June, 1892. On the 4th of June, 1892, the town board passed a resolution appointing the defendant excise commissioner in the place of the relator. The defendant under the resolution qualified, and on the sixth of June took possession of the office and was so in possession at the time of the commencement of this action.

The resolution of the board recited that the relator was elected in February, 1891, and “thereupon took the general oath and filed his bond as required by law, but failed to further qualify by making and subscribing the test oath as required by section 3, chapter 163, Laws of 1S90that the oath filed July 13, 1891, was not taken before an officer duly authorized to take the acknowledgment of deeds,” as in the .act of 1890 provided ; that the oath filed June 3, 1892, was not in time. It was then resolved that, the office being vacant by reason of the failure of the relator to qualify to said office as by law provided, the board appoint the defendant to fill the vacancy occasioned by such failure.

By the judgment appealed from the relator is not declared entitled to the, office. The only question here, therefore, is whether the defendant was properly appointed. That depends upon whether there was then a vacancy existing which the town board had a right to fill. The relator was in fact in possession of the office and in the performance of its duties and had been for a year and upwards.

The defendant claims that a vacancy existed because (1) the test oath required by section 3 of chapter 163 of the Laws of 1890, was not filed in time and was not taken before the proper officer ; and (2) because the bond filed in pursuance of the provisions of chapter 444 of the Laws of 1814, as amended by chapter 459 of the Laws of 1886, was not sufficient in amount. The oath was taken before the town clerk and he was authorized to take it. (Chap. 112, Laws of 1838; chap. 569, Laws of 1890, § 56.) The provision that the oath should be taken before an officer duly authorized to take the acknowledgment of deeds ” was directory and did not prevent its being taken before any officer authorized to administer oaths. (Ex parte Heath, 3 Hill, 49; Canniff v. Mayor, etc., 4 E. D. Smith, 430; People ex rel. Mosher v. Stowell, 9 Abb. N. C. 456; 19 Am. & Eng. Ency. of Law, 444.) The act did not specify any particular time within which the oath should be filed by officers thereafter elected. It provided that “ a failure to take the oath in this section prescribed shall disqualify any one from holding or debar any one from continuing to hold any office or position mentioned in this act.” The oath in proper form was in fact filed long before any proceedings were taken to declare a vacancy. In 1 Dillon on Municipal Corporations (4th ed.), section 214, it is said: “ Statutes requiring an oath of office and bond are usually directory in their nature, and unless the failure to take the oath or give the bond by the time prescribed is expressly declared, ipso facto, to vacate the office, the oath may be taken or the bond given afterward if no vacancy has been declared.” (See, also, Matter of Taylor, 25 Abb. N. C. 143.)

The bond was in the sum of $2,000. The defendant claims that it should have been in the sum of $2,205, that being double the amount of the excise moneys of the previous year as indicated by the report of the supervisor. This objection to the bond is not raised in the order appointing the defendant, and no vacancy is declared on this account. On the contrary, it is there stated that the relator filed his bond as required by law.” The bond as given appears to have been accepted by the supervisor and filed. It ran to the supervisor in accordance with the statute and presumptively he fixed the amount.

According to the current of authority in this State the defect or omission, if any, in regard to the bond and oath, at the most made-the relator’s title defeasible and afforded cause for forfeiture of the-office, but did not create a vacancy. That, it is said, could only be effected by a direct proceeding for that purpose. (Cronin v. Stoddard, 97 N. Y. 274; Horton v. Parsons, 37 Hun, 45; People ex rel. Willson v. Board, etc., 59 id. 206; People ex rel. Woods v. Crissey, 91 N. Y. 635.)

No authority is cited showing that in such a case as this the town board had authority to make an adjudication of vacancy.

But it is urged that the rule upon the subject of vacancies has been changed by the provisions of section 51 of the “ Town Law ”' (Chap. 569 of 1890), which provides that the officer elected shall, before he enters upon the duties of the office, and within ten days after he shall be notified of his election, take the constitutional oath of office and such other oath as may he required hy law, and that a neglect or omission to take and file such oath, or a neglect to execute and file within the time required by law any official bond or undertaking, shall be deemed a refusal to serve, and the office may be filled as in case of vacancy.

By the statute in force before the passage of the Town Law it was provided that every office should become vacant by refusal or neglect to take the oath of office within the time required by law or to-give or renew any bond within the time prescribed by law. (1 R. S. chap. 5, tit. 6, p. 122, § 34; 1 R. S. [8th ed.] 402.) It may be-doubted whether there was any design to change the rule on the subject in the revision of 1890.

The Town Law did not take effect until March 1, 1891. That, was after the relator was elected and had entered upon the duties of tlie office. It is not to be presumed that tlie Town Law was designed to be retroactive. (Goillotel v. Mayor, etc., 87 N. Y. 443.)

In view of the fact that the proper oath was filed long before the town board acted, and that no question was made about the bond, I fail to see any gpod reason for disturbing the judgment.

Hardin, P. J., and Martin, J., concurred.

Judgment and order affirmed, with costs.


author: Martin, J.: Hardin, P. J.

text:
    Seymour Lowman, as Guardian of Frank L. Clearwater, Respondent, v. Frances M. Sprague and Charles Sprague, Appellants.

      Suimna/ry proceeding for forcible detainer of land — constructive possession — peaceable entry— claim of title — Code of Civil Procedure, §2245.
    'Tlie words “ constructive possession,” in tlie clause of section 2245 of tlie Code of Civil Procedure which prescribes that the petitioner in a summary proceeding for the recovery of land on tlie ground of a forcible holding out of possession must allege and prove that ho was in constructive possession at the time of the forcible holding out, are intended to apply to a case where the petitioner had the title in fee, or an absolute right of possession by some other grant, ami would, therefore, be entitled to the actual possession but for the forcible holding out of it by the person sought to bo removed.
    'When the petitioner in such a summary proceeding has alleged and proved facts which show him to be in constructive possession, the mere fact that the person sought to be removed entered into possession peaceably in the absence of the petitioner and claims to have a paper from the petitioner’s grantor under winch he claims title, but the character of which, is not shown, is not sufficient to deprive the petitioner of his remedy by summary proceeding and remit him to an action of ejectment. (Hardest, P. J., dissenting.)

      Semble, that the only defenses which can be interposed in a summary proceeding for a forcible holding out are those prescribed by section 2245 of the Code of Civil Procedure, namely, (1) a denial of the forcible holding out; (2) that the defendant, or his ancestor, or those whose interest he claims, had been in ■ quiet possession for three years before the forcible detainer, and that his interest has not ended or determined.
    Appeal by the defendants, Frances M. Sprague and Charles Sprague, from a judgment of the County Court of Chemung county in favor of the petitioner, entered in the office of tlie clerk of that county on the 24th day of March, 1893, reversing a judgment of a justice of the peace in favor of the defendants.

      Frederick Collm, for tlie appellants.

      Baldwin & Baldwin, for tlie respondent.
   Martin, J.:

I think the judgment of the County Court should be affirmed. 'This proceeding was instituted by the respondent under title 2 of chapter 1T of the Code of Civil Procedure, to accpiire the possession of the farm or premises in question. The respondent’s claim as-finally made was based on the allegation that the appellants- by force held the possession of the premises sought to be recovered. The answer was in effect a general denial of the allegations in the petition, but contained no allegation that the appellants, or their ancestor, or those whose interest they claimed, had been in quiet possession of the property for three years before the alleged forcible detainer, as provided by section 2245.

On the trial the justice dismissed the proceeding and rendered judgment against the respondent, with costs, on the ground that, as the appellants claimed a right to the possession of the premises, he-had no jurisdiction of the proceedings. From that judgment the respondent appealed to the County Court of Chemung county, Avhere the judgment or final order made by the justice was reversed: The propriety of the last' judgment is the question here to be determined.

The Code provides that a'person who, having peaceably entered upon real property, holds the possession thereof by force, may be removed therefrom, as provided in the foregoing title of the Code.- (§ 2233.) "Where the application is founded upon an allegation of forcible holding out of possession, the petitioner must allege and prove that he was in constructive possession at the time of the forcible holding out, and the adverse party must either deny the forcible holding out, or allege that he, or his ancestor, or those whose interest he claims, had been in quiet possession for three years together next before the alleged forcible detainer, and that his interest is not ended at the time of the trial.

That Jacob Lowman owned and was in possession of the premises in question at the time of his death is in no manner disputed. That the premises were devised to Frank L. Clearwater by the last will and testament of Jacob Lowman is also nndenied. The undisputed evidence likewise shows that Seymour Lowman was the duly appointed guardian of Frank L. Clearwater, who was an infant. Thus the title was in Clearwater, and the right of possession was confessedly in Seymour Lowman as such guardian. While he was temporarily absent, the appellants, against the will and protest of the respondent’s servant, entered upon the premises, built a small shanty, -into which they moved, and claimed to be in possession of the whole farm. Upon the respondent’s return, within a few days after such entry, he sought to regain the possession of the premises, but was forcibly held out by the appellants. The only pretense or claim of any right to the possession made by the appellants was that Frances had said that she had some paper from Jacob Lowman, the character and provisions of which are totally unknown to this court, as they were to the court below. There was no proof whatever that any paper relating to, or which conferred upon the appellants the title or right of, possession to the premises in fact existed, or ever had existed. The most that can be said is that the evidence showed that the appellants made a naked, unsubstantiated claim to-the premises, without assertion or notice of its character. So far as the evidence is concerned, the appellants appeared to be total strangers to the property, without any right therein.

Under these circumstances, it seems to me that the justice erred in dismissing the proceeding and rendering judgment for the respondent. By reference to the petition, it will be seen that it is alleged that Frank L. Clearwater was the owner in fee of the premises, and that the petitioner was the general guardian of his estate and person. The proof was undisputed that the title was in the infant, and that the respondent was his duly constituted guardian, and was in possession when defendant unlawfully entered. Thus it would seem.that it was in effect both alleged and proved that the respondent was in constructive possession of the premises, within the meaning of section 2245 of the Code, at the time he was forcibly held out by the appellants.

I am unable to concur in the conclusion that there was no aUegiition or proof that the petitioner was in constructive possession of the property, or that there was such a claim of right by the appellants as justified the justice in dismissing the proceeding. Under the evidence and proceedings as they stood at the close of the trial, I am of the opinion that the respondent was entitled to the relief sought.

Constructive possession is that which exists in contemplation of law without personal occupation. I think the words constructive possession,” as used in this statute, were intended to apply to a case where the petitioner had the title in fee, or an absolute right of possession by some other grant, and who would, therefore, be entitled to the actual possession but for the forcible holding out of it by the person sought to be removed. (Brown v. Volkening, 64 N. Y. 80; Bliss v. Johnson, 94 id. 235; People v. Field, 52 Barb. 198, 210.) If those words are not to be thus construed, they are meaningless, and I am unable to perceive how any one can be removed from premises forcibly held by him where the possession was obtained.by stealth or in the absence of the person entitled thereto. I think a fair construction of the statute does not justify the conclusion that the respondent was not entitled to the relief sought because he failed-to allege and prove that he was in constructive possession. That he-has alleged and proved the facts which show him in such possession seems to me clear, and I cannot believe that the mere claim by the-appellants that they had a paper under which they claimed title was-sufficient to. defeat the respondent when there was no proof as to its= character, or even of its existence. If such be the law, the remedy given by the Code for forcible entry and detainer can be enforced, only where the entry was by force.

Can it be that if a 'man peaceably enters a house during the absence of its owner, and upon his return claims that he has some paper from the owner’s grantor and refuses to remove, that the owner has no remedy except by an action of ejectment ? I think riot. It appears to me that the provisions of the Code relating to this subject were intended to apply to a case like this.

But it is said that the cases of Bliss v. Johnson (73 N. Y. 534 94 id. 235) and Alexander v. Griswold (44 N. Y. St. Repr. 121) are adverse to the decision' of the County Court, and sustain that of the-justice. In Bliss v. Johnson Aiq action-was for assault and battery. The defendants sought to justify on the ground that .one of them owned the land, and on the first trial they offered to prove that the title to the locus in quo was in one of the defendants. This evidence'was rejected, and the Court of Appeals held that the court erred in excluding the evidence. In delivering the opinion on the first .appeal in this case Andrews, J., said : u An entry by a stranger without right, during the temporary absence of the plaintiff, would not have divested his possession, and he would have been justified in removing the intruder- by force. Rut his prior possession gave him no such right as against the defendants. The true owner of land wrongfully held out of possession may watch his opportunity, and if he can regain possession peaceably may maintain it, and lawfully resist an attempt by the former occupant to retake possession, nor will he be liable to be proceeded against under the statute of forcible entry and detainer. There can be no wrongful detainer by the true owner when-the entry was both lawful and peaceable.”

On the second appeal it was held that one holding the legal title to land, although not actually occupying it, will be considered as constructively in possession thereof, unless it is in the actual hostile -occupancy of another under a claim of title. It was also held that the evidence in that case was insufficient to establish a claim by -adverse possession. It may be remarked, in passing, that the above case was not a proceeding under the statute relating to forcible entry and detainer, and, hence, the decisions have no bearing upon the question under consideration, except as they declare generally the right of the owners of land to its possession.

The Alexmider case was.a proceeding under the statute relating to forcible entry and detainer, and in that case it was held that a landlord having made a quiet entry and regained possession of leased premises under a claim of right, an action of unlawful detainer could not be maintained against him or any person to whom he thereafter leased the premises.

In Kelly v. Sheehy (60 How. Pr. 439) it was held that the proper interpretation of section 2233 was that the proceedings for forcibly holding out may be maintained, not only in cases of forcible entry, but in cases where one peaceably enters upon real property, without right, and holds the possession thereof by force, and that in that case, as the entry was without right, and the real property was held by force, it was held that the section applied.

I find nothing in the cases relied upon which seems to aid the appellants. On the contrary, they tend to uphold the decision of the County Court. If the appellants had alleged and showed title,, then the doctrine of these cases would have been applicable. Moreover, it would seem that under the provisions of section 2245, the only defenses the appellants could interpose were: (1) A denial of the forcible holding out; and (2) that they, or their ancestor, or those whose interest they claimed, had been in quiet possession for three years before the forcible detainer, and that their interest has not ended or determined. I think the judgment of the County Court is right, and should be sustained.

Merwin, J., concurred.

Hardin, P. J.

(dissenting):

Appeal from a judgment of the County Court of Chemung county reversing a justice’s judgment rendered against the plaintiff for costs in summary proceedings. Plaintiff’s petition alleges possession of the premises described therein, and that “ while your petitioner was so in such lawful, actual, peaceable occupation, and on or about the 28th day of July, 1892, as petitioner is informed and believes, certain persons, among others Charles Sprague and Frances Sprague, did unlawfully and against the will of your petitioner make an unlawful and forcible entry info and upon said premises, and did then and there unlawfully and forcibly eject and expel your petitioner’s employee from said premises, and has in like manner on said 28th day of July last, and on divers days and times since said 28th day of July last, did hold the possession of said premises by force, * * * and have ever since held and still unlawfuly and forcibly hold, in like manner, your petitioner and his employees out of possession' of said premises, contrary to the form of the statute.” The answer contains a denial of all the allegations of the petition. When the parties were before the justice on the return' of the precept a waiver was made in the following language: “.Plaintiff waives that part of the petition relating to forcible possession of the premises in question and concedes that defendant got possession without force.” The justice denied the prayer of the petition, and in doing so stated .the following grounds: “ First. The petitioner concedes that the defendant did, on the 28th day of July, 1892, enter on and take peaceable possession of said premises. Second. Petitioner swears' that since the 28th day of July the ■defendants have and do now hold possession of said premises. Third. By the evidence of the petitioner the defendants claim a right to the possession of said premises. What that right may be this court has no jurisdiction to determine. Therefore, the court has to concede that the defendants’ right to possession of said premises is sufficient to hold the same until the proper courts decide who is the actual owner of said premises. I, therefore, dismiss this action and render judgment against the plaintiff in favor of defendants, with costs.”

After the elimination from the case, by concession, of the allegation relating to forcible entry, there remained only to be considered the question whether the defendants were brought within the provision of section 2245 of the Code of Civil Procedure as to “ forcible holding out.” That section seems to require that where the proceeding is founded upon “ forcible holding out,” that the petitioner should be “in constructive possession at the time of the holding out.” No such averment is found in the petition, nor does the proof given before the justice require á finding to that effect. On the contrary, the justice was called upon to find upon the proofs submitted to him, and in doing so, to construe the evidence and determine what part of it he would give credence to, and in doing so he has in effect found that the plaintiff was not in constructive possession at the time of the commencement of the proceedings, nor at the time of the trial. The justice has in effect found that .the defendants were in possession, and that they made “ a claim of right to the possession of said premises.” By the evidence given upon the trial it appears that the defendants claimed to be in possession under a right, and they put their refusal to remove from the premises on the ground that they were there rightfully. The female defendant alleged, at the time the plaintiff sought to regain possession of the premises, her right to the same. In the course of the plaintiff’s testimony he says: “ Mrs. Sprague said she had had legal advice, and proposed to stay there, if she had to do it by force. They said I had no right there, and ought not to try and get it away from them; asked Mrs. Sprague what kind of a title she had of the place; she said she had a paper signed by Jacob Bowman.” It appeared by the evidence that Jacob Bowman was the former owner of the premises, and was the party from whom tlie plaintiff claimed to derive title. It seems that the doctrine laid down by Andrews, J, in Bliss v. Johnson (73 N. Y. 534) is applicable to the case in hand. In the course of that opinion he says: “ The defendants entered upon the land during the absence of the plaintiff, peaceably and without force, and from that time they were in actual possession, and the possession of the plaintiff was determined. An entry by a stranger without right during the temporary absence of the plaintiff would not have divested his possession, and he would have been justified in removing the intruder by force. But his prior possession gave him no such right as against the defendants. The' true owner of land wrongfully held out of possession may watch his opportunity, and if he can regain possession peaceably may maintain it, and lawfully resist an attempt by the former occupant to retake possession, nor will he be liable to be proceeded against under the statute of forcible entry and detainer. There can be no wrongful detainer by the true owner when the entry was both lawful and peaceable.” ¥e think the findings which the justice was warranted to make, and in effect did make, brought the case within the principle just quoted. The premises were in the actual occupancy of the defendants, and the occupancy was hostile, and was under a claim of title, and the plaintiff was not, therefore, constructively in the possession of the premises according to the rule laid down in Bliss v. Johnson (94 N. Y. 235). The rule which is applicable to the case before us, we think, is correctly laid down in Alexander v. Griswold (44 N. Y. St. Repr. 121). After stating numerous cases the opinion concludes as follows : Respondent Griswold having made a quiet entry and gained possession under a claim of right, the law will not suffer that right to be attacked, except by an action duly brought by the respondent for that purpose.” It seems that the decision made in this case is not a bar to an action of ejectment. (Code, § 2264.) The foregoing views lead to the conclusion that the decision of the justice was correct, and that the judgment of the County Court reversing the justice’s judgment should be reversed, with costs, and the judgment of the justice affirmed, with costs.

Judgment of the County Court affirmed, with costs.


author: IIaedin, P. J.:

text:
    Eldon R. Carver, as Receiver of the Property of David F. Barker, Respondent, v. David F. Barker and Ida B. Barker, Appellants.

      Conveyance by a husband to his wife, in fraud of creditors —• declarations of the defendant grantor.

    In an action brought to set aside a conveyance of real property made by a husband to his. wife, as fraudulent as against subsequent creditors of the husband, it appeared that the conveyance was voluntary and without consideration and left the grantor insolvent; the deed to Ms wife was promptly recorded, hut the husband continued iu the management and control of the property, made purchases, including purchases of materials for improvements to the house on the property in question, in his own name on credit, falsely stating, when inquiries were made, that he still owned the property ; after such transfer, an exchange of the property for othei' land was brought about by the husband, in accordance with a previously formed plan, and the land taken in exchange was managed by him as his own.

      Held, that the evidence warranted the finding of a fraudulent intent on the part of the husband, with knowledge thereof by the wife.
    The property transferred by the husband to his wife had passed into the ownership of a bona fide purchaser for value.

      Held, that the property itself was protected against the claims of the husband’s • creditors, hut that the property taken in exchange therefor in equity took its place and should he applied to the satisfaction of such claims.
    In an action brought against a grantor and grantee, to set aside a conveyance as fraudulent as against creditors of the grantor, admissiops or declarations of the grantor are competent as against himself although not admissible as against or binding upon the grantee.
    On the trial of such an action, the plaintiff, having read in evidence parts of the testimony of the defendant grantor given in supplementary proceedings against him, the defendants sought to read in evidence other paits of his testimony in explanation of what had been read. The grantor was present at the trial, and • the defendants were not permitted to read his testimony.

      Held, that such ruling was proper, as the witness was at the trial and his evidence was*available to the defendants upon all the essential and material points raised during the trial.
    Appeal by tbe defendants, David F. Barker and Ida B. Barker, from a judgment of tbe Snpreme Court, entered in tbe office of tbe clerk of Broome county on. tbe 11th day of March, 1893, upon, a decision of tbe court rendered after a .trial at tbe Broome Special Term, adjudging a certain conveyance and transfer to be fraudulent and void.
    Tbe action was brought to declare a conveyance made by tbe defendant David E. Barker to the defendant Ida E. Barker, who were husband and wife, fraudulent, and to reach property taken by the fraudulent grantee in exchange therefor.
    The opinion of the trial court, which sets forth the facts and which was approved by the General Term, was as follows :
    “ Parker, J.:
    “ The conveyance of the property on De Russey street by Barker to his wife left him utterly insolvent. Tie was then owing his father some $1,4.00 or $1,900, and aside from a lot of store accounts that are not collected, and are evidently but of little value, and aside from the real estate, he had barely $500 to pay it with.
    “ Being in this condition, he had evidently formed the idea that, so far as subsequent creditors were concerned, he could put his property in his wife’s name, and thus remove it beyond their reach. His statements to several of the witnesses show that such was his idea. He thereupon conveys to her all his real estate, practically without any consideration whatever, and moreover without any apparent reason or motive other than a mere change of the title from himself to her. The theory now advanced, that he wished to protect her in case of his death, does not seem to me to be sustained by the circumstances of the case. His health was not in a critical condition, no more so than was hers. They are both young people, without children, and it is quite improbable that he would have rendered himself insolvent for the mere purpose of providing for her in anticipation of his possible death, when if she had died before him the property would pass to her relatives instead of to him.
    “ After the transfer he really continues in the management and control of it, and proceeds to carry out his plan, previously formed, of exchanging it for a farm. Evidently the exchange and all the business by which the farm and the Morgan street property were acquired for the De Russey street property was brought about by him, and pursuant to his directions, and the apparent ownership of that property and of the farm, after they moved onto it, was, so far as its management indicated, in him. He, also, after the conveyance to his wife, continued to purchase property in his own name on credit, and in some instances, when inquiry was made, falsely stating that he still owned the De Russey street property.

      “ In. other instances purchasing material with which to repair and improve the house in his own name and on his own credit. A large amount of the property so purchased by him, on credit, within a few months after the transfer to his wife, he mortgages to his father to secure the debt of $1,400 or $1,900 owing to him, and thus he provides, at the expense of subsequent creditors, for liquidating the debt existing at the time of the conveyance to his wife, and at the .same time takes care that his father loses nothing by the transaction. From all the evidence in the case I have no doubt but that the purpose and intent of Barker was to accomplish just what his act resulted in, to wit, to buy property in his own name, and on the credit of his apparent ownership of the property which he occupied, sufficient to repair the house, stock his new farm, liquidate his debt to his father, and obtain as much more as could be procured on credit before the changed condition of his affairs became known, all without paying for the same, or rendering the property which was so recently his, .and on which his credit was based, liable for the same. It is earnestly urged by the defendants’ attorneys- that, because the deed to his wife was promptly recorded, and thus notice given to all that Barker no longer owned it, such a transfer cannot be held fraudulent as’against subsequent creditors. That the conveyance was recorded is, of course, a fact to be considered in determining what the intent of the parties was. Beyond that it has no bearing on the case, because if the intent was to defraud the conveyance is void, whether recorded or not. The recording of the conveyance might to some extent interfere with a plan to obtain credit on an ajjparent ownership of the property, but not only the practical effect of it in this case, but also our every-day experience, shows that such constructive notice operates but very littie to prevent such credit being obtained for some time after the record is made. New dealers search the records from month to month to see whether their customers still own the property they occupy, and Barker, I fancy, was not unaware of that fact. If his purpose was to notify all dealing with him that he no longer owned the property where he was living, he would have better succeeded, and dealt more honestly with them, had he told them of his changed condition instead of lying as to some and suppressing the truth as to others.
    “ As to Ms wife’s having knowledge of his intent and purpose I have no doubt but that she fully understood it. She could have hardly known all the facts, as she did, without so understanding it. But whether she did or not, she is a mere grantee without consideration, and has no equity that should be protected against the claims of these creditors. (Starin v. Kelly, 88 N. T. 418 ; Loos v. Wilhvnson, 110 id. 195.)
    “ The property transferred by Barker to his wife has passed into the ownership of a bona fide purchaser for value, and is, therefore, •protected against the claims of Barker’s creditors, but the property taken in exchange therefor in equity takes its place, and should be applied to the satisfaction of such claims.”
    On the trial the plaintiff’s counsel read in evidence from the testimony of the defendant David F. Barker, given on his examination in supplementary proceedings.
    Thereafter the defendants’ counsel offered, in reference to explanations of David F. Barker, the parts of his testimony consisting of declarations which had been omitted by the plaintiff’s counsel. This was objected to as something that the plaintiff had not offered, as not bearing upon the particular issues in question, as hearsay, and because the defendants, should swear the witness himself on the points in question. The court sustained the objection.

      JBabcooh, Sperry <& Van Oleve, for the appellants.

      Oortlcmd Wilber and A. L>. Wales, for the respondent.
   IIaedin, P. J.:

After a perusal of the evidence bearing upon the vital issues in the case the conclusion is reached that the trial court was warranted in finding a fraudulent intent on the part of the husband, with the knowledge thereof in the wife to the extent stated in the findings of fact made by the trial judge, and the opinion delivered by the trial judge meets with our approval. This case differs quite essentially from Neuberger v. Keim (134 N. Y. 36).

(2) When Florence was upon the stand as a witness he was ■allowed to state a conversation held with David F. Barker, and upon •objection being taken to portions of the evidence the court observed: " You object to all his statements to this witness and I allow them for the purpose stated.” The court had theretofore observed: “I will receive it as tending to show a fraudulent intent on the part of David F. Barker.” Á ruling was made when the witness Brown was upon the stand to the effect that the evidence would be received as bearing upon the question of what his intent was.” The ruling was repeated when the witness Ford was upon the stand, and when the plaintiff proposed to prove by Barker himself his situation and circumstances as to property, objections were stated by the defendants, and thereupon the court observed: The objection is sustained as to Ida B. Barker-, and evidence received as against David F. Barker as showing his statement.” We think no prejudicial error was committed by the court in the rulings adverted to. Manifestly the court intended to keep within the rule as laid down by this court in Scofield v. Spaulding (54 Hun, 523), in which case it was held that the admissions or declarations of the grantor were competent evidence as against himself, as he was a party defendant. We discover no intention on the part of the trial judge to hold that such declarations were admissible or binding upon the female defendant, or to make a ruling contrary to our holdings in the Spaulding case.

(3) Nor do we think it was error to prevent the defendants from reading certain portions of the evidence taken in supplementary proceedings. The witness Barker was at the trial, and his evidence was available to the defendants upon all the essential and material points raised during the trial. Some other rulings were made during the trial to which attention has been given, and in them we find no error requiring us to disturb the conclusion reached at the Special Term.

Martin and Merwin, JJ., concurred.

Judgment affirmed, with costs.


author: Hardin, P. J.:

text:
    The City of Syracuse, Appellant, v. The Glenside Woolen Mills, Respondent, Impleaded with Others.

      Condemnation of real property — water rights — inspection to obtain evidence as to value — the Syracuse Water Act, chapter 291 <^1889.
    In a proceeding to condemn water riglits for a public use, the court has no authority at common law to require a defendant to permit, for the purpose of acquiring evidence as to value on the assessment of damages, an inspection to be made of buildings and lands not covered by the petition and not to be condemned in the proceeding.
    The provision of the “ act to establish and maintain a water department in and for the city of Syracuse” (Laws of 1889, chap. 291, § 3), that “the board, its officers, agents and employees are authorized to enter upon any lands or waters for the purpose of making such surveys, examinations and investigations as shall seem to them necessary in the faithful performance of their duties,” is not to be construed as conferring on the court, in a proceeding to acquire water rights, instituted by the city under that act, power to compel a party to permit an examination by experts of buildings and machinery which are not to be taken by the proceeding, to the end that such experts may give evidence on the assessment of the value of the property to be taken.
    Appeal by tbe plaintiff, tlie City of Syracuse, from an order of the Supreme Court, made at Special Term and entered in the office of the clerk of Onondaga county on the 21111 day of October, 1893, denying the plaintiff’s motion for an order “ enjoining and restraining the defendant, the Glenside Woolen Mills, from refusing admittance to its grounds and buildings and full opportunity for inspection and examination thereof, and of the machinery and appliances therein, for the purpose of forming an opinion as to the value thereof, to such persons as shall be designated and employed for the purpose by the Syracuse Water Board.”
    This is a condemnation proceeding, instituted by the plaintiff to acquire water and water rights of the defendant.

      George K* Kennedy and O. L Stone, for the appellant.

      Frcmk Kiscock and George Farrow, for the respondent.
   Hardin, P. J.:

It is stated in the order that the motion was “ denied on the sole ground that the court has no power at common law, or under the statute (Chapter 291, Laws of 1889), to compel the defendant to permit plaintiff’s experts to examine the mill in question or its contents, for the purpose above named,” to wit, “ to give evidence of the value of the same before commissioners appointed herein to assess the damages.” The petition was made a part of the moving papers used at the Special Term. By the petition it appears that Skaneateles lake is situated some seventeen miles southwesterly from the city, and is a body of fresh water about fifteen miles long; that it is “ a proper and desirable source of supply from which to obtain water for the uses of the city of Syracuse and its inhabitants; that it has been “ duly and finally selected and determined upon as the proper and only adequate and available source for water supply; that chapter 291 of the Laws of 1889 and chapter 311 of the Laws of 1890 were passed;” that “in order to obtain a suitable and adequate reservoir and source of supply * * and in order to comply with the terms and conditions of the Laws of 1889, as amended by chapter 311 of the Laws of 1890, it is necessary that the city * * * shall increase the storage capacity of said lake sufficient to store therein all the ordinary flow of its watershed, and shall store therein, divert and draw therefrom, such quantities of water as, from time to time, the uses of said city and its inhabitants may require, and shall withhold in said lake, and from the outlet thereof, any and all waters heretofore accustomed to flow therefrom and therein * * * and which shall not be required for the Erie canal; ” it is also stated that the defendant, “ as owners, lessees * * * and otherwise of and upon concerning certain parcels of land abutting, adjoining and contiguous to the outlet of Skaneateles lake or some part, have or claim to have some right, title or interest of, in and to the waters of Skaneateles lake and the use thereof, as the same have hitherto been accustomed to flow from said lake through said outlet, and along, over, upon and contiguous to ” this parcel of land. The petition sets out a description of the lands owned by defendant, and states “the t^lue of the rights, title and interest of, in and to the waters of Skaneateles lake and the use thereof, as the same have been accustomed hitherto to flow in said outlet, and as the same might flow therein hereafter, but for the proposed action of the plaintiff in storing, obtaining, using and diverting the same for the purposes aforesaid, which said water rights are or are claimed to be appurtenant to said parcel of land ” so owned by defendant. Tbe petition further states : “ The plaintiff asks to condemn and acquire all and several the right, title and interest of the defendant * * * of, in and to the waters of Skaneateles lake and its watershed, as the same flow, or might otherwise flow, in the outlet of said lake, and upon, along, over, contiguous and appurtenant to the land and premises adjacent to said outlet ” described in petition as belonging to defendant. Following such description is a statement of “the value of the water rights sought to be condemned and acquired which are appurtenant to the above-described property.” It is alleged also, “ That the property hereby sought to be acquired is necessary and requisite to the acquiring, constructing, improving, controlling, maintaining and operating the system of water works contemplated by the laws hereinbefore referred to.” The prayer of the petition “ demands that it may be adjudged that the public use requires the condemnation of all the right, title and interest of the defendant * * * of, in and to the waters of Skaneateles lake and its watershed, as the same flow, or might otherwise flow, in the outlet of said lake and upon and along, over, contiguous and appurtenant to” the land described, owned by defendant and in which it has an interest, except so much thereof as may be permitted to flow through “ the outlet thereof for the purpose of supplying the Erie canak”

From the quotations and statements of the petition, it seems manifest that the plaintiff is seeking to condemn and take from the defendant its water rights and water privileges, and that the petition is not drawn with a view of condemning the buildings, machinery and lands on which they are situated belonging to defendant.

It is thus made apparent that the plaintiff seeks an order requiring the defendant to permit an entry into buildings and upon lands which are not to be condemned and taken under the petition made when the proceedings were instituted. Cases in which the courts have refused to require defendants to submit property to an inspection seem to be applicable.

In Newham v. Tate (1 Arnold, 244) and Turquand & Another v. The Guardian of the Strand Union (8 Dowl. Pr. 201) an order that an examination of property of defendants be permitted was refused. In so far as the motion was denied, because at common law the court was not authorized to grant it, we think, the Special Term was sustained by authority. (McQuigan v. D., L. & W. R. R. Co., 129 N. Y. 50 ; Union Pacific Railroad Co. v. Botsford, 141 U. S. 250; Minor v. Gardiner, 4 Hun, 132; Downey v. MacAleenan, 16 N. Y. Supp. 916; Cooke v. Manufacturing Co., 29 Hun, 641; Ansen v. Tuska, 19 Abb. 391; Code Civ. Proc. § 3382.)

The act of 1889, section 3, contains the following language: “ The board, its officers, agents and employees are authorized to enter upon any lands or waters for the purpose of making such surveys, examinations and investigations as shall seem to them necessary in the faithful performance of their duties.” "We are not disposed to construe this provision of the statute as indicative of an intention of the Legislature to confer upon the court power to compel a party to permit an examination by experts of buildings and machinery which are not to be taken by the proceedings, to the end that such experts may give evidence before commissioners who, as in this case, are to assess the value of the water rights of the defendant, and “ to ascertain the compensation which ought justly to be made to the defendant ” for the “ rights and property to be taken.”

We think the motion was properly denied and that the order should be affirmed, with costs.

Martin and Merwin, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.