text:
    H. Wilson Blashfield, Respondent, v. The Empire State Telephone and Telegraph Company, Appellant.

      Erection of telephone poles on a highway — right of the adjacent owners of the fee to compensation or damages — evidence stricken out by a referee after the submission of the case.

    The construction of a telephone line by the erection of poles and the placing of wires thereupon, within the limits of a country highway, constitutes an additional burden upon the fee of adjacent lands extending to its center, not contemplated or included in the original dedication or appropriation of the land for highway purposes, for which the landowner is entitled to compensation or damages.

      Eels v. Am. Tel. & Tel. Go. (48 FT. Y. St. Repr. 303 ; 20 FT. Y. Supp. 600), followed. A referee has no right, unless such right shall have been specially reserved, to strike out, after a case tried by him has been submitted for his decision, evidence which has been improperly admitted.
    On the trial, before a referee, of an action brought by the assignee of claims against a telephone company, on the part of the adjacent owners of the fee in certain highways, to recover the damages resulting from the erection and maintenance of telephone poles and wires in the highways, the referee permitted, under objection and exception, witnesses for the plaintiff to give their opinions as to what the rental value of the respective premises would be or would have been without the telephone poles thereon, and the case was submitted for decision. While the case was under deliberation, the referee, without any further hearing or appearance of the parties, became doubtful as to the correctness of his ruling admitting such testimony, and in his report thereafter filed, which was in favor of the plaintiff, he stated that he had stricken out all such opinion evidence and had disregarded it in his assessment of damages and had based the same upon other evidence.

      Eeld, that the action of the referee in striking out the evidence in question was without right and called for a reversal of the judgment entered on his report and for a new trial before another referee.
    Appeal by the defendant, the Empire State Telephone and Telegraph Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of Cortland county on the 9th day of April, 1892, upon the report of a referee.
    The action was in trespass brought by the plaintiff as assignee of sixty-eight alleged causes of action against the defendant for building and maintaining telephone lines along certain highways in Cortland county without having made compensation to the owners of the fee of the highways over which the lines extended.

      Frederick F. Stroke, for the appellant.

      Frcmklim, Pierce, for the respondent.
   Hardin, P. J.:

An opinion was delivered by the learned referee, in which he states: “ The principal question in this case, and the first one to be met and disposed of, is whether or not the construction of a telephone line by the erection of poles and the placing of wires thereupon within the limits of a country highway, constitutes an additional burden upon the fee of adjacent lands extending to its center, not contemplated or included in the original dedication or appropriation of the land for highway purposes.” Upon the question the learned referee concludes a lucid opinion as follows: “ That the construction of defendant’s telephone lines .did impose an additional burden upon the fee of the highway for which the owner was entitled to compensation.” Since the learned referee’s opinion was written the case of Eels v. American Telephone and Telegraph Co. (48 N. Y. St. Repr. 303; S. C., 20 N. Y. Supp. 600), has been decided by the fifth department, and in that case it was held : The occupancy of a highway by the poles of a telegraph or telephone company is not one of the ordinary and legitimate uses for which highways are established, and is the imposition of an additional burden on, and the taking of, the property of the owner of the fee, which enables him to maintain an action to compel the removal of the poles, and to recover possession of the premises occupied thereby, with damages, where such occupancy is without his consent and without compensation having been previously made him therefor.”

(2) Plaintiff produced upon the hearing before the referee numerous witnesses to detail facts relating to the extent of the damages sustained by the several assignors of the plaintiff by reason of the acts of the defendant. It was also stipulated that the referee might pass along the lines and view the several poles and the locations, and the facts and circumstances surrounding them, and to take such observations into account in assessing damages. lie, in company with the attorneys, passed over a larger portion of the lines, and it must be assumed he observed the situation of the poles and lines, and the extent of the interference with the properties of the several assignors. Plaintiff called numerous witnesses to give evidence upon the subject of the damages sustained by the several assignors. Questions were propounded to them calling for their opinions as to the extent of the damages sustained by reason of the acts of the defendant. Objections were seasonably taken to the opinions; they were overruled and exceptions were taken to the rulings. The evidence was submitted to the referee, and during the time he had the cause under deliberation he discovered the decision made by the Court of Appeals in Dwight v. E., C. & N. R. R. Co. (132 N. Y. 199). Without any further hearing of the parties, or without their being before him and asking any ruling or decision, and while having the cause under consideration for final determination of the issues, he became doubtful about his rulings as to the admission of the opinions of the witnesses on the subject of the damages; and in his report he states in the seventy-fourth finding as follows: I allowed the plaintiff upon the trial to call a number of witnesses, chiefly from among the plaintiff’s assignors, and after the witnesses had described the nature of the injuries to their respective farms, I permitted them, upon the question of the injury to the rental value of their respective premises by the erection and maintenance of these telephone lines, to give in some cases their opinion as to what the rental value would be, or would have been, without the telephone poles thereon. After such evidence was given, I was invited by the attorneys for the respective parties to ride over the telephone routes involved in this controversy, and to observe the nature and extent of the injuries described in the evidence, and it was stipulated that I might consider what I thus observed in determining the amount of the plaintiff’s damages if it should become necessary for me to so determine. I made such examination in company with the attorneys of the respective parties in September, 1891. Upon reflection and examination, I became doubtful as to the competency of the said opinion evidence given by-, plaintiff’s witnesses, as before detailed, and before assessing the damages herein, I called the attention of the attorneys of the respective parties to my doubt as to the competency of such evidence, and stated to them that upon my own motion I should strike out such evidence, and disregard' the same in assessing damages herein. I have, therefore, stricken out all such opinion evidence on the part of the plaintiff’s witnesses, and I have entirely disregarded tlie same in my assessment of the plaintiff’s damages, and I have assessed said damages entirely upon a consideration of the description of the damages given by both the plaintiff’s and defendant’s witnesses herein, and also upon my personal observation as to the nature and extent of such damages so far as the same could be ascertained by me in an examination while riding along said line. An exception to my action in thus striking out such evidence is hereby given to either party who feels himself aggrieved thereby, with the same effect as though taken by him upon the trial of the action.” Our attention is called to several reported cases adverse to the action of the referee. (Allen v. Way, 7 Barb. 585 ; Meyers v. Betts, 5 Den. 81; Bloss v. Morrison, 47 Hun, 218.) In the last case it was held, viz.: “ Whatever may be the power of the court or a referee during the progress of a trial, as to striking out evidence which has been improperly admitted, no such right can exist after a cause has been submitted for decision, unless such right has been specially reserved.” Near the close of the opinion in that case, it was said: “ The record of the evidence is closed with the submission of the case, and cannot be thereafter altered except by the consent of the parties. It may be that in the case at bar the erroneous ruling of the referee made no difference in the defense offered by the appellant, but of this we cannot be certain, and even the seeming recognition of the right under discussion, as possessed by either a court or referee, would be so dangerous to suitors that in this instance it cannot pass unchallenged.” Respect for that authority seems to require us to condemn the action of the referee.

(3) Numerous other questions have been presented by the appellant. Doubtless upon another trial the evidence will be changed to some extent, and it is not deemed useful to comment upon the evidence nor to consider the rulings in detail.

The judgment must be reversed and a new trial’ordered before another referee, with costs to abide the event.

Parker, J., concurred; Merwin, J., dissented.

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


source: Caselaw Access Project

author: Hardin, P. J.:

license: Public Domain

text:
    Harry Evans, Respondent, v. Frank W. Conklin and Luther Conklin, Appellants.

      Lease signed by the lessee and by a third party, but not by the lessor — action for rent— failure to establish a cause of action against the third party as á surety — costs on affirming a justice’s judgment in part only.

    A written lease, signed by the lessee, may be valid as between the lessor and the lessee who has occupied under it, although not signed by the lessor; and the production of such a lease by the lessor, on the trial of an action brought by him against the lessee for rent, with proof that the lessee entered into possession of the premises and occupied the same, and that the rent had not been paid, will establish a cause of action against the lessee.
    A. lease was signed by the lessee named therein, and immediately under his signature, without any accompanying or explanatory words, was signed by a third party, who was not mentioned in the lease. The lessor brought an action for rent under the lease, in a Justice’s Court, against the lessee and the third party by whom the lease was signed, and recovered a judgment against both defendants, which was affirmed by the County Court. Evidence was given on tire trial before the justice tending to show that the defendant, the third party, at the lime of the execution of the lease became aware that the plaintiff expected that he would be surety for the lessee, and that his defense was technical rather than equitable.

      Held, on appeal from the County Court, that the plaintiff failed to make out a cause of action against the third party; even on the theory that he signed the lease as surety for the lessee, since such an undertaking would be void under the Statute of Frauds by reason of the failure to express a consideration therefor;
    That the judgment of the County Court should be modified so as to contain a provision affirming the justice’s judgment as against the lessee, with costs, and reversing the judgment as to the third party, with ten dollars costs and disbursements (Code Civ. Proc. § 3063) in that court; and that the judgment as so modified should be affirmed, with costs of the appeal to the General Term to the plaintiff-respondent against the lessee appellant only, and without costs of the appeal in the General Term to the third party appellant.
    Appeal by tbe defendants, Frank ~W. Conklin and Lntber Conk-lin, from a judgment of tbe County Court of Onondaga county, entered in tbe office of tbe clerk of that county on tbe 12th day of December, 1892, affirming a judgment of a Justice’s Court in favor of tbe plaintiff.
    The action was brought to recover rent alleged to be due from Frank Conklin by virtue of a lease. The justice’s judgment was for eighty-two dollars and ninety-one cents damages, four dollars and sixty-five cents costs; total eighty-seven dollars and fifty-six cents.
    The following is the lease in suit:
    “Apulia, Jem. 10, 1891.
    This article of agreement made and entered into this 1st of March, 1891, by and between Harry Evans, of the Town of Tully, Co. of Onon., State of N. Y., party of the first part, and Frank W. Conklin of the Town of Fabius, Co. of Onon., and State of N. Y., party of the second part, witnesseth that the party of the first part agrees to let and by these presents does let unto the party of the second part for the term of one year, his farm situate in the Town of Fabius, together with the four cows now on the premises, for the sum of $200, two hundred dollars, to be paid in two payments, $100, one hundred dollars, on the last of Nov. 1891, and the remainder at the end of the year, 1892. Said Conklin is to return the cows in as good condition as when he takes them in his possession, if any should die through his neglect he is to lose them, if not Harry Evans is to lose them. Said Evans is to leave hay on the place to keep the cows on until grass comes. Said Conklin is to leave the same on when he leaves the place. Said Evans is to leave the seed barley that is now on the place. Said Conklin is to leave the same Amt. when he leaves. Said Evans is to leave the horse-rake on the farm and it is to be left in as good repair, except the wear on it. H. Evans is to fix the cistern in good repair. Said (Jonklin is to help fix it. The old fences said Conklin is to put in repair, said Evans is to furnish the material, said Conklin is to work the road tax.
    “FKANK W. CONKLIN,
    “LHTHEK S. CONKLIN.”'

      J. jE. Newell, for the appellant.

      WilUam Kennedy, for the respondent.
   Hardin, P. J.:

Loughran v. Smith (11 Hun, 311), is an authority for holding that the lease is valid between the plaintiff and the lessee who occupied under the same, notwithstanding the fact that it was not signed by the plaintiff, and the production of the lease and the proof given on the trial that the lessee, Frank Conklin, entered into possession of the premises and occupied the same, and the rent had not been paid quite satisfactorily, established a cause of action against Frank Conklin, the lessee.

(2) When the plaintiff rested a motion was made to “ dismiss the complaint as against Luther Conklin on the ground that he is not a party to the lease and is not liable thereon; ” and, second, that there is no evidence that will warrant a judgment against Luther Conk-lin or against any defendant that will support a joint judgment in this action.” The motion was denied. Thereupon Luther Conklin was sworn as a witness and he was asked: Did you sign the lease as a subscribing witness only ? ” This was objected to and the objections were sustained. The following question was then put to him : Did you ever sign that paper, plaintiff’s Exhibit £A,’ except as a witness to the execution of it ? ” This was objected to and the objections were sustained. At the close of the evidence a motion for a nonsuit was renewed on the whole evidence on the same grounds and on the further grounds ££ that the plaintiff has not signed the lease, and the minds of the parties did not meet, and the lease is void.” The motion was denied. The lease produced bore date January 10, 1891, and read as follows : ££ This article of agreement made and entered into this 1st day of February, 1891, by and between Harry Evans * * * party of the first part, and Frank W. Conklin * * * party of the second part, wit-nesseth, that the party of the first part agrees to let and by these presents does let unto the party of the second part for the term of one year, his farm situate in the town of Fabius.” Many other stipulations are found in the lease and there is nothing in the body of it nor in any attestation clause indicative that Luther S. Conklin was in anyway a party to the agreement. However, his name appears to have been written immediately under the name of the lessee, Frank W. Conklin.

In Decker v. Gaylord (8 Hun, 111), it appeared that a lease had been signed by the lessee, and thereafter appeared the wmrds Chester Gaylord security for Frederick S. Gaylord,” and in the course of the opinion delivered in that case it was said that the defendants were not joint lessees o'f the plaintiff, and that they could not be held liable upon tbe lease given, in evidence in that capacity, and in tlie opinion it was said: “ Tbe lease was clearly a contract between tbe plaintiff and tbe defendant Frederick S. Gaylord. He was the lessee and the sole contracting party as such in the lease, and the defendant Chester signed the same as his surety, and is not a lessee named in the lease, and he did not make himself a party to the same, except as a guarantor, or as he expressed it in words following his signature, as ‘ security for Frederick S. Gaylord.’ ”

In Gould v. Moring (28 Barb. 444), there was an agreement to pay rent for certain premises made by Heilberth; after his signature appeared the words, Security — H. E. Moring,,” and it was held that The consideration not being expressed in the undertaking of the defendant, it was void by the Statute of Frauds,” and in the opinion it was said: In this case the defendant undertakes as security for the tenant; that is, that he will pay if the defendant does not. A joint action will not lie against them both; they are not the same but different and distinct contracts. (De Ridder v. Schermerhorn, 10 Barb. 638 ; Allen v. Fosgate, 11 How. Pr. 218.) It follows, therefore, that the present case falls directly within the rule laid down in Brewster v. Silence, and the consideration not being expressed in the undertaking of the defendant, it is void by the Statute of Frauds, as the same exists in this state.” We think the plaintiff failed to make out a cause of action against Luther Conklin. We think there was no error in the County Court affirming the judgment as to Frank Conklin, and that the judgment rendered by the County Court, as to Frank Conklin, should be affirmed by this court. The notice of appeal to the County Court was signed in behalf of both defendants; so too the notice of appeal to this court. Evidence was given on the trial before the justice tending to show that the defendant Luther, at the time of the execution of the lease, became aware that the plaintiff expected that he would be surety for the lessee, and that his defense has more foundation in technical law than it has in the equities surrounding his case.

Under such circumstances we are inclined to affirm the judgment as to Frank Conklin, and to modify the judgment of the County Court so far as it affirms the judgment as to Luther Conklin, by providing that the judgment of the justice be reversed as to Luther Conklin, with ten dollars costs, besides disbursements in the County Court, and that the judgment, as so modified, be affirmed without costs to Luther Conklin in this court.

Section 3068 of the Code of Civil Procedure provides that, the appellate court may affirm or reverse the judgment of the justice in whole or in part, and as to any or all of the parties, and for errors of law or of fact; and section 3066 in subdivision 5 provides, viz. : “ If the judgment is affirmed only in part, the costs, or such a part thereof as to the appellate court seems just, not exceeding $10 besides disbursements, may be awarded to either party.”

Judgment of the County Court modified so that the same shall contain a provision affirming the justice’s judgment as to Frank Conklin, with costs, and reversing the judgment as to Luther Conk-lin, with ten dollars costs and disbursements in that court, and the judgment, as so modified, affirmed with costs of the appeal in this court to the respondent against Frank Conklin only, and without costs of the appeal in this court to Luther Conklin.

Mekwin and Parker, JJ., concurred.

So ordered.


text:
    Joseph E. West, Respondent, v. The City of Utica and Others, Appellants.

      Taxpayer’s action to restrain waste of municipal funds — expense incur red, by municipal officers in defending proceedings to punish them for contempt of court — costs in equity actions.

    When officers of a municipal corporation have been adjudged guilty of a contempt of court in violating an order of the court, it cannot be said that they were acting' in good faith or in the bona fide .discharge of their duties so as to entitle them to be indemnified by the municipality for the expenses incurred in their defense of the contempt proceedings.
    The payment of such expenses by the municipality may be restrained at the suit of a taxpayer, brought “to obtain a judgment preventing waste of or injury to the estate, funds or other property of” the municipality. (Code Civ. Proc. § 1925.)
    Proceedings having been commenced to punish eight of the twelve aldermen comprising the common council of the city of Utica, for an alleged contempt of court in violating an injunction, the eight aldermen, by their own votes, passed a resolution of the common council for the employment, in the name of the city, of counsel to conduct their defense, which resolution was vetoed by the mayor; the eight aldermen were thereafter adjudged guilty of the alleged contempt, and they thereupon repassed the resolution for the employment of counsel over the mayor’s veto. A taxpayer of the city thereupon brought an action to restrain the city authorities from paying the counsel so employed, or the expenses of the defense of the eight aldermen, out of the city’s funds.

      Held, that the effect of the contempt proceedings was to indicate a want of good faith on the part of the eight aldermen;
    That the common council had no power or authority to use the funds, or the machinery to reach funds, of the city to discharge any indebtedness arising on the part of the eight aldermen for their counsel in their defense against proceedings for contempt, which resulted in an adjudication that they were guilty of the alleged contempt;
    That their action in employing counsel in the name of the city was an attempt to make the city liable for their own obligation, because the city was not bound to pay the expenses of defending an illegal act of its officers, even if purporting to be done in its behalf.
    It did not appear that any claim or bill for services of the counsel, who acted in the defense of the eight aldermen, had ever been presented to the common council, allowed or audited, but the evidence disclosed that valuable services had been performed after the passage of the resolution for the employment of counsel, in the name of the city, and had not been paid for.

      Held, that the inference was justified that it was the expectation that a claim for such services would be presented to the common council for payment, and hence it was proper for the trial court to declare in its decision that the employment of counsel was not binding upon the city, and that its funds were not liable therefor.
    Where, in an action in equity, each party succeeds as to a part of the matters in litigation between them, costs are not allowed to either as against the other.
    The discretion exercised by the Special Term as to costs in an equity action may be reviewed in the General Term.
    In addition to seeking to restrain the city officers, including the eight aldermen who had been convicted of contempt, from auditing or paying out of iho city’s funds the expenses of the defense of the contempt proceedings, as to which branch of the case judgment was rendered in favor of the plaintiff, the complaint sought to restrain the defendants from inserting in assessment rolls or tax lists certain sums for street paving and building a school house, but the trial court at Special Term refused to grant the prayer in that regard, and judgment was entered to the effect that the plaintiff was not entitled to the relief so sought. The Special Term awarded costs of the action to the plaintiff against the defendant aldermen who had been convicted of contempt.

      Held, that the judgment should be modified so as to provide that neither party should recover costs against the other.
    Appeal by tbe defendants, tbe city of Utica, and the mayor, tbe aldermen, tbe clerk and tbe treasurer of tbe said city, from a part of a judgment of the Supreme Court, entered in tbe office of tbe clerk of Oneida county on the 12th day 'of December, 1892 (as amended by an order entered the 7th day of January, 1893), upon a decision of the court rendered after a trial by the court at Special Term.
    In the conclusions of law stated by the Special Term are found the following : “ That the passage of the resolution of August 31st, 1892, on the subject of employing counsel, and its repassage over the mayor’s veto, did not bind the city in anyway or sum whatever, for the defense of said eight aldermen, in said contempt proceedings in which they were convicted. That the attempt to bind the city was an illegal official act. 3. That the plaintiff is entitled to a judgment against the defendants herein, perpetually restraining them and each of them, £ from auditing, allowing, ordering paid, drawing a warrant, or signing, or countersigning, or paying any warrant for any sum whatever for the payment of the costs, expenses or counsel fees or charges of or for the defense of said eight aldermen, Daniel MeG-ucken * * * or any of them, against their contempt in violating the said injunction of this court, which they voted for themselves August 31,1892, and again September 27,1892, or about those dates.’,J

      Josiah Perry, A. M. Becurdsley and Matteson <& PeAngelis, for the appellants.

      G. D. Adams, for the respondent.
   Hardin, P. J.:

Plaintiff is a taxpayer in the city of Utica upon an assessment of more than $1,000, and brings this action to “ to obtain a judgment preventing waste of or injury to the estate, funds or other property of” the city of Utica. (See section 1925 of the Code of Civil Procedure.) This section was intended “ to protect against the fraud or bad faith of the officer, or to restrain illegal action on his part.” (Ziegler v. Chapin, 126 N. Y. 342.) After proceedings were taken against eight of the aldermen of the city, to punish them for contempt in violating an injunction order of this court, by a vote of eight of the twelve aldermen, a resolution was passed August 31, 1892, that counsel be employed for their defense in said contempt proceedings, and the resolution was in the following language: Resolved, That a committee consisting of the President of the Common Council and two aldermen be appointed, with power to employ suitable counsel to defend the proceedings in contempt instituted by - the service of papers on the President, Daniel McGrucken.” It is found by the Special Term that after the mayor had vetoed the resolution, and after the aldermen were convicted of contempt, the resolution was again passed Sep'tember 27, 1892, over the veto by the same vote, the said aider-men having two-thirds of the votes of the council. Although it was assumed at the trial, as well as upon the argument of the appeal before us, that counsel in pursuance of the resolution were employed, it is found as a fact by the Special Term “ That no bill or claim has ever been -presented to the common council, or to the city of Utica, for any services, costs or counsel fees, or charges in the matter of said contempt proceedings, or in the defense thereof; ” and it is also found that no bill has been audited, or warrant drawn therefor, in payment of costs, expenses, counsel fees' or charges, “in the defense of said contempt proceedings, or of said eight aldermen, and they have not undertaken or attempted any such thing or act.” And it was found as a conclusion of law by the Special Term that the plaintiff is entitled to judgment “ perpetually restraining them and each of them from auditing, allowing, ordering paid, drawing a warrant,, or signing or countersigning, or paying any warrant for any sum whatever for the payment of the costs, expenses or counsel fees, or charges of or for the defense of said eight aldermen, Daniel McGlucken * * * or any of them, against their contempt in violating the said injunction of this court, which they voted for themselves August 31, 1892, and again September 27, 1892, or about those dates.”

Our attention is called by the appellants to Powell v. The Trustees of the Village of Newburgh (19 Johns. 283), which came before the court upon facts “ agreed to by the parties.” In that case the trustees of the village were sued for an act done by them in virtue of their office “in the faithful discharge of their duty as trustees and agents of the corporation,” and for the necessary costs and charges in and about their defense they sought to recover, and in closing the opinion in that case, SpebtceR, Ch. J., said: “ They acted faithfully and without fault, and are entitled to recover for every-tiling reasonably and necessarily disbursed in and about their defense.” We think the case is quite distinguishable from the one before us. When the Special Term was called upon to make its decision, the eight aldermen had been, by an order of this court, adjudged guilty of contempt. The effect of the contempt proceedings brought to the attention of the Special Term was to indicate a want of good faith on the part of the eight aldermen, and by reason of that violation of the injunction order, their contemptuous act, the proceedings were taken.

Our attention is directed to McCredie v. The City of Buffalo (2 How. [N. S.] 336), which is a case where an officer incurred expenses in establishing his right to the office. The case is quite unlike the one before us, and in the course of the opinion delivered in that case it was said: It is an established rule that a municipal corporation may indemnify its officers and agents for expenses necessarily incurred in the Iona fide discharge of their duties,” and cases are cited to support that proposition. (See opinion, page 340.) In the case before us, the decision at Special Term proceeds upon the ground that the eight aldermen, being in contempt of court and violating its order, were not acting in good faith or “ in the loona fide discharge of their duties.” The case stated, therefore, does not aid the appellants.

In Board of Supervisors v. Ellis (59 N. Y. 620), it was held that a board of supervisors has no power to audit and allow accounts not legally chargeable to their county ; and it was further held in that case that the board “ cannot lawfully engage a county in, or bind it to, the payment of the expenses of a litigation by an individual to establish his right to an office, and the audit and payment thereof is unlawful.” We think the Special Term was warranted in reaching the conclusion that the common council had no power or authority to use the funds, or the machinery to reach funds of the city to discharge any indebtedness arising on the part of the eight aldermen for their counsel in their defense against proceedings for contempt, which proceedings resulted in an adjudication by the court that the eight aldermen violated an order of the court, and were, therefore, guilty of the alleged contempt. The learned judge who held the Special Term, in an opinion delivered, expressed himself as follows: “The employment of counsel pursuant to a resolution of the common council was a contract in behalf of the city, and, if valid, rendered it liable to pay a reasonable compensation to the gentlemen employed for such services as they should render. It must be presumed from the judgment of conviction that the eight aldermen were guilty of contempt and lawfully punished. Their action, therefore, in employing counsel in the name of the city was an attempt to make the city liable for their own obligations, because the city is not bound to pay the expenses of defending an illegal act of its officers, even if purporting to be done in its behalf. As the evidence stands before me, therefore, with the judgment of conviction unreversed, their action was unauthorized and illegal.” We find no occasion to differ from the views expressed by tlie learned trial judge. Although it did not appear at the Special Term that any claim or bill for services of the counsel who acted in defense of the eight aldermen had ever been presented to the common council, allowed.and audited, yet, upon the evidence found in the case made at the Special Term, and the papers therein referred to, it is quite obvious that valuable services were performed after the passage of the resolution, and that those services had not been paid for; and the inference is justified that it was the expectation of the eight defendants that such services would be presented to the common council for payment (and perhaps it is not unreasonable to suppose that the counsel, who performed those services, expected that they would be paid in the manner suggested). It was not improper for the trial court to declare the employment of counsel not binding upon the city, and that its funds were not liable therefor. In dealing with the situation and the several acts of the eight aldermen, the trial judge, in his opinion, said : Their action is in the nature of a threat to waste the funds of the city by paying them out for services rendered in defending themselves against a charge of personal misconduct of which they were guilty. * * * I think that the plaintiff is entitled to a permanent injunction restraining the defendants from auditing, allowing or paying out of moneys belonging to the city any part of the expenses incurred by employing counsel to defend the contempt proceedings. * * * ”

(2) It is insisted that the Special Term erred in awarding costs of this action against the aldermen who were convicted of contempt.” Tliis action was brought on the equity side of tlie court, and the rule regulating costs is found in section 3230 of the Code of Civil Procedure, which provides that in such an action as this “ The court may, in its discretion, award costs to any party, upon the rendering of a final judgment.” In considering the question whether the discretion was properly exercised or not, regard must be had to the circumstances attending the other branch of the case, which was presented to the Special Term. In the plaintiffs complaint facts were stated upon which the plaintiff asked a perpetual injunction against the defendants “ Prom extending or in any way or manner attempting to extend, or causing or suffering to be extended, upon any of the assessment rolls of Utica, or any ward therein, of the/ year 1892, said $50,000 for paving work in the city of Utica for the year 1892, beyond $6,000, as any part of any tax against any taxpayer or any taxable property in the city of Utica, or any ward therein. Also, from causing, suffering or permitting, or attempting to do so, any tax for said sum of $50,000 beyond $6,000, to go into or upon the tax lists of said city for any ward therein against any taxpayer or taxable property. Said officers respectively shall neither sign nor deliver any assessment roll or tax list with any such tax in it. Prom extending, or in any manner or way attempting to extend, or causing or suffering to be extended, upon any of the assessment rolls of Utica, or any ward therein, of the year 1892, said $8,000 for or on account of building the 12th ward school house in the city of Utica or any part of any tax against any taxpayer or any taxable property in the city of Utica or any ward therein. Also, from causing, suffering or permitting (or attempting to do so) any tax for said sum of $8,000, to go into or upon the tax lists of said city for any ward therein against any taxpayer or taxable property. Said officers respectively shall neither sign nor deliver any assessment roll or tax list with any such tax in it.” The Special Term refused to grant the prayer in that regard, and under its decision a judgment has been entered to the effect that the plaintiff is not entitled to the relief asked for in thp language quoted.

In Law v. McDonald (9 Hun, 23), it was held as follows : “ Where in an action in equity each party succeeds as to a part of the matters in litigation between them, costs are not allowed to either as against the other,” and in that case the judgment appealed from was modified so as to stand without costs to either party as against the other.” A similar rule was laid down in Crippen v. Heermance (9 Paige, 211); McCulloch v. Vibbard (14 N. Y. Civ. Proc. Rep. 388) ; Ten Eyck v. Holmes (3 Sandf. Ch. 428); Couch v. Millard (41 Hun, 215).

In Rosa v. Jenkins (31 Hun, 384), it was held by this court that the discretion exercised in an equity action as to costs may be reviewed here.

Rundle v. Allison (34 N. Y. 185), contains nothing inconsistent with the rules 'already stated. We think the judgment should be modified so far as it awards costs against the defendants, and a clause inserted therein to the effect that neither party shall recover costs against the other, and as so modified, we think it should be affirmed, without costs of this appeal to either party.

MeRWIN, J., concurred; PARKER, J., not sitting.

Judgment modified as stated in the opinion, and as modified affirmed, without costs of the appeal to either party.


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    Jane D. Rogers, Appellant, v. Thomas Dwight, Respondent.

      Chattel mortgage -=• temporary removal of, from, the town clerKs office, after its having been duly filed — validity of the mortgage not affected, as against the person cawing its removal.

    When a chattel mortgage has been duly filed in the town clerk’s office as required by the statute (Laws of 1833, chap. 379, §§ 1 and 3), it will not be rendered invalid, or the mortgagee be deprived of his rights thereunder, by the clerk’s omission to keep the mortgage in his office, as is made his duty by the statute, as against a judgment creditor of the mortgagor who, having notice of the mortgage, by his own act in issuing a subpeena duces tecum in proceedings supplementary to execution, causes the mortgage to be temporarily removed from the files and from the physical possession of the clerk by the mortgagee, in obedience to the subpeena, without any intention of withdrawing or suppressing the mortgage ; and the judgment creditor of the mortgagor will not acquire any rights in the mortgaged property, as against the mortgagee, by causing a fresh execution under his judgment to be levied thereon while the mortgage is so temporarily removed from the clerk’s office.
    Appeal by tlie plaintiff, Jane D. Rogers, from a judgment of the Supreme Court dismissing tlie complaint upon the merits, entered in tbe office of the clerk of Clieuango county on the 13th day of November, 1886, upon a verdict in favor of the defendant, rendered at the Chenango Circuit, and from an order denying the plaintiff’s motion for a new trial made upon the minutes.
    The plaintiff alleged that on the 3d of August, 1885, she was the owner of thirteen dairy cows of the value of $325, six yearling heifers of the value of ninety dollars, and two yearling bulls of the value of twenty dollars, and that the defendant on that day seized, carried away and converted the property to his use. In the defendant’s answer it is alleged that on the 15th of December, 1884, one James O. Hammond, who then resided at Preston, Chenango county, owned the cows and personal property described in the complaint, and to secure an indebtedness to the defendant of about $1,000 “the said James O. Hammond duly sold and assigned the same to this defendant by a chattel mortgage, duly executed, as security for the payment of the said $1,000, payable on or before April 1st, 1886; * * * and that on the 17th day of December, 1884, this defendant caused the said chattel mortgage to be duly filed and entered in the town clerk’s office of the said town of Preston,” and that after the removal of the mortgagor and his wife to the town of Oxford with the said property “ this defendant caused a copy of said chattel mortgage to be duly filed and entered in the office of the town clerk of the said town of Oxford. That the said chattel mortgage and the said copy respectively have since remained on file and duly entered in the said offices of the said town clerks of the said towns respectively.” It is also alleged that thereafter the defendant seized the property under the chattel mortgage, sold the same at public auction, “ and that on such sale this defendant became the purchaser of said property.”
    It is alleged that the plaintiff recovered a judgment against Hammond and issued an execution thereon, which was returned wholly unsatisfied, and that the plaintiff commenced supplementary proceedings against Hammond before the county judge of Chenango county, who appointed a referee to examine Hammond as to his property and take such evidence as might be produced, and the 12th day of June, 1885, was appointed for taking such evidence at Oxford. * * * That the plaintiff knew that defendant’s mortgage was filed in the clerk’s office, and that on or about the 11th day of June, 1885, plaintiff and lier attorney “ caused a subpoena duces tecum to be issued and served upon this' defendant commanding him under severe penalties to bring and produce the said chattel mortgage before the said referee on the said 12th day of June.” * * That in pursuance of such subpoena the defendant, on the 12th of June, informed the clerk of such subpoena and obtained permission of him to take and produce said chattel mortgage before. the referee “as his agent or deputy.” * * * “That on the 11th day of June, 1885, the said plaintiff and her said agent and attorney procured the sheriff to levy upon the said property by virtue of the said execution and well knowing that the said James O. Hammond did not own any interest therein/'* * * * That the sheriff, on the 31st of July, 1885, at the request of the plaintiff, sold the property mentioned in the complaint, “ the plaintiff assuming and pretending to become the purchaser thereof at the sale.”
    Upon the issues framed by the pleadings the question was presented at the trial whether the plaintiff was the owner of the property or whether the defendant was the owner thereof by virtue of his chattel mortgage and the foreclosure thereof and purchase thereunder. A verdict was rendered for the defendant.- Amotion was made for a new tidal on the minutes and denied, an opinion being delivered by the trial judge. Judgment was entered for the defendant dismissing the plaintiff’s complaint, and the plaintiff appealed from the judgment and the order denying a motion for a new trial.

      Scmvioel 8. Stafford, for the appellant.

      George IF. Hay, for the respondent.
   Hardin, P. J.:

Upon the trial the court submitted to the jury to find whether the defendant took his mortgage from the clerk’s office with the intention and for the purpose of removing it from the files, and whether he took it to Oxford at the request and pursuant to the subpoena and request of the plaintiff. The court charged the jury that if he did not intend to remove it from the files, and took it to Oxford for use in court at the request of the plaintiff and in pursuance of her subpoena to produce it, intending to return it, and tbat if the defendant’s delay in not returning it was occasioned by mistake or accident, the defendant was entitled to a verdict. When the defendant applied to the town clerk for a loan of the mortgage he made no avowal of any intention to withdraw the mortgage from the files of the clerk’s office; on the contrary, he avowed that he had been subpoened to produce it, and that in obedience to the subpoena he desired the clerk to permit him to take the mortgage before the referee. He took it before the referee, and was examined in respect thereto, the plaintiff and her attorney having notice of the purpose for which it was presented, and of the contents of the mortgage. The defendant was a physician, and when he returned home his patients required his attention; and evidence was given tending to indicate that by mistake and accident he failed to return it to the clerk’s office for a period of about four days; during that period the the plaintiff caused a fresh execution to be issued on the 16th of June, 1885, and the deputy sheriff who had returned the first execution, levied on the mortgaged property. As soon as the defendant learned of the levy he immediately returned his mortgage to the clerk’s office. The plaintiff caused the property to be sold on the execution, and bid it in herself, her attorney being present at the sale, and acting as clerk. The following Monday the defendant took the property and sold it under his mortgage, and insisted upon the trial that as to this plaintiff the mortgage was on file all the time, and tliac the plaintiff could not be permitted to take advantage of her own act to deprive the defendant of his lien and rights under his mortgage.

Section 1 of chapter 219 of the Laws of 1833, relating to chattel mortgages, provides that a mortgage shall be absolutely void as against the creditors of the mortgagor, and as against subsequent purchasers and mortgagees in good faith, unless the mortgage, or a true copy thereof, shall be filed as directed in the succeeding section of this act.” Defendant’s mortgage was filed, and from that time it was, so far as the act relates to it, valid. It did not fall within the condemnation of the section from which the quotation has been made.

In Griswold v. Sheldon (4 N. Y. 599), it was said : “ The object of filing the mortgage is to give notice of its existence to all persons who choose to inspect it, and when properly filed it is legal presumptive notice, binding on all persons interested.” In the case here the notice was given by the filing to the plaintiff, and she and her attorney had actual notice and knowledge of defendant’s mortgage. The sheriff who returned the first execution presumptively did so upon the assumption that the mortgage was regularly on file, and was a valid lien upon the property in question. In the supplementary proceedings the plaintiff caused a subpoena duces tecum to be issued. Defendant’s mortgage was referred to in that subpoena, and it was produced by the request and by the command of the plaintiff before the referee, from the clerk’s office. A complete obedience to the subpoena could not take place without a temporary loan by the town clerk from his office of the instrument filed therein.. All of the objects of the statute were fulfilled by the filing of the mortgage in the clerk’s office. The filing thereof operated as notice to the plaintiff, and the evidence abundantly discloses that she had actual knowledge of the mortgage, and that it had been properly filed, which knowledge was made very apparent to "her and her attorney on the 12th of June. On that day the defendant had a lien upon the property, and the plaintiff had full knowledge thereof upon that day, which notice and knowledge were possessed by the plaintiff and her attorney prior to the issuing of the second execution under which she caused the property to be levied upon and sold, and which she assumed to purchase at the sale. She ought not to profit by her act in causing the mortgage to be taken from the clerk’s office. (Trenton Bank. Co. v. Sherman, 24 Alb. L. J. 390 ; S. C., 86 N. Y. 221.) The plaintiff did not part with any consideration; did not become a creditor while the mortgage was temporarily out of the office of the town clerk, on the faith that there was no lien upon the property; she was not misled by the fact that the instrument was temporarily removed from the clerk’s office; she is not equitably entitled to the position that would have been held by a creditor whose debt was contracted while the instrument was temporarily out of the office. Again, the 2d section of the act of 1833 provides that the instrument mentioned in the 1st section shall be filed in the several town clerks’ offices mentioned, and then provides, viz.: “ And such register and clerks are hereby required to file all such instruments aforesaid presented to them respectively for that purpose, and to indorse thereon the time of receiving the same, and shall deposit the same in their respective offices, to be kept there for tbe inspection of all persons interested.” As we have already seen, the defendant filed his mortgage in the clerk’s office, and thereby complied with the requirements of the statute. The statute required the clerk to file it; he did so, and he deposited the same in his office. It was his duty to keep the same there for “ the insp'ection of all persons interested.” The command of the statute is upon the clerk; the keeping is to be by the clerk; there is no duty laid in terms upon the mortgagee as to the keeping of it; there is no provision in this section declaring the clerk’s failure to keep it fatal to its validity; there is no provision to the effect that if it be not kept there ” by the clerk that it shall be void. In Bishop v. Cook (13 Barb. 326), near the close of the opinion, it is said : “ The party shouldnot be deprived of his rights by the neglect of the officer.” In Dodge v. Potter (18 Barb. 193, 202), it was said: “ It was the duty of the town clerk and not of the mortgagee to number the mortgage. The rights of the mortgagee could not he impaired by the omission to perform that duty.” The case is entirely destitute of evidence to indicate an intention on the part of the defendant to withdraw or suppress his mortgage. The evidence does indicate that it was the act of the plaintiff which caused the temporary removal of the mortgage from the physical possession of the clerk. Surely she ought not to profit by an act performed at her request under the command of her subpoena, which, at most, may be said to have interfered with the duty of the clerk to retain the mortgage in. his office. It was her act which induced the clerk to part temporarily with the mortgage from the files. It appears the clerk was advised that it was in pursuance of the subpoena, and that the mortgage was only temporarily to be used before the referee for the purpose of complying with the tenor of the subpoena.

Our attention is called to Fox v. Burns (12 Barb. 677); in that case it appeared that the chattel mortgage was executed on the 15th of March, 1849, and “ on the 18th or 19th of June, 1850, it was taken from the town clerk’s office by the mortgagee,” and in considering that case StboNG, J., observes : “ The withdrawal of this mortgage from the clerk’s office by the mortgagee, leaving the cow with the family of the mortgagor, would have invalidated the mortgage as against a subsequent purchaser, etc., in good faith, if it had not before ceased to be valid to that extent.” We think the case is quite distinguishable from the one before us. Evidently the language was used with reference to a voluntary, absolute, intentional removal of the mortgage from the tile by the mortgagee, and it is to be observed that the expression used by the judge is that such removal would have invalidated the mortgage as against a subsequent purchaser, etc., in good faith.” In the ease in hand, as we have already seen, the plaintiff had notice, had knowledge of the existence of the mortgage, and that it had been regularly tiled, and was herself instrumental in the temporary loan of it by the clerk.from his office. We think the case before us is quite unlike that one.

Our attention is called to Swift v. Hart (12 Barb. 530). We think that case is quite distinguishable from the one before us. The principal question decided in that case is unlike the one here; the remarks found in the opinion evidently relate to a voluntary Withdrawal of the mortgage from the files with the intention to suspend the lien; and it was held that a second filing of a mortgage after an expiration of a year, accompanied with a statement of the amount due thereon is valid against an execution “ not levied until after the second filing.” We think nothing is to be found in the case sustaining the contention of the appellant. We think no error was committed in refusing to direct a verdict for the plaintiff, nor in refusing to set aside the verdict and the motion for a new trial made upon the minutes. (Swift v. Hall, 23 Wis. 532; Jones on Chattel Mortgages, § 269.)

The foregoing views, as well as those expressed in the opinion of Martin, J., delivered in the court below, lead us to sustain the verdict and the judgment rendered thereon.

Merwin and Parker, JJ., concurred.

Judgment and order affirmed, with costs.


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    Minnie Haar, Appellant, v. Industrial Benefit Association, Respondent.

      Life insurance — disputed claim under a policy — accord, and satisfaction — ratification by the beneficiary of a settlement made by another as her agent.

    In an action brought- against a benefit association upon a certificate of life insurance, by the beneficiary, (he evidence showed that after the death of (he insured, payment was disputed by the association, and an adjustment was made by the husband of tiro beneficiary, as agent of his wife, with the agent of the association, for a settlement by payment of a less amount than that claimed, and that a paper to that effect was signed by the husband in his own name and that of the beneficiary, and the policy surrendered to (lie association; that the beneficiary had knowledge that her husband was about to negotiate with the agent of the association with a view to adjusting the claim and obtaining thereon what money could be secured by way of settlement; that shortly after the adjustment was made between the husband and the agent of the association, the beneficiary had information of its details and understood the facts and circumstances relating thereto, and thereafter received from the association, through her husband, a bank draft for the amount which had been agreed upon by the husband and the agent of the association, made payable to her order, which she indorsed and cashed.

      Held, that the testimony j ustified the conclusion that the beneficiary ratified the act of her husband in making the adjustment of the disputed claim, by accepting the fruits thereof with knowledge of the material facts, even if she had not given explicit authority, or exact directions as to the adjustment; and, hence, that a nonsuit was properly directed by the trial court.
    Appeal by tbe plaintiff, Minnie Haar, from a judgment of tbe Supreme Court dismissing tbe complaint, entered in tbe office of tbe cleric of Oneida county on tlie 14th day of January, 1893, upon a nonsuit directed by tbe court at the close of tbe evidence at tbe Oneida Circuit.
    Tbe action was brought to recover tbe amount payable under a certificate of insurance issued by tbe defendant, payable to tbe plaintiff named therein as beneficiary. After proofs of death were delivered to tbe company, its agent went to tbe residence of tbe plaintiff in tbe city of Utica, on Sunset avenue, bad an interview with her and she referred him to lier husband upon tbe subject of an adjustment of the claim made upon tbe certificate; be held an interview with tbe husband, and by an appointment, known to tbe plaintiff, met tbe husband tbe next day at tbe office of the local agent, Wagner, of the defendant, and near the close of that interview, the husband and the agent came to an adjustment, which was evidenced by a writing signed by the husband in his own name and in the name of his wife. The instrument read as follows :
    “ This agreement, made this 26th day of March, 1892, in settlement of claim on certificate No. 2,088 on the life of Annie Rnuth. Mamie Haar, beneficiary, agrees to accept the sum of one hundred dollars, in full settlement .and compromise on said certificate, and upon payment of said sum agrees to receipt in full said policy and return same to said Industrial Benefit Association or their agent in the city of Utica, N. Y:
    “MINNIE HAAR.
    “ W. P. Colvin.
    “ HERMAN HAAR.”
    Subsequent to the execution of that paper, and on March 28, 1893, the president and secretary of the company executed a sight order on the treasurer of the defendant for the sum of $100, and at the foot of that order are these words; “ This order payable only when accompanied by policy No. 2,088 properly receipted.” The policy had indorsed upon it as of the 30th day of March 1892, a receipt for the $100, and the policy was delivered to the defendant with the receipt subjoined. There is some dispute as to the execution of that receipt, as to whose handwriting it was in, but the policy was surrendered to the company, and thereupon the defendant caused to be issued a draft drawn by the cashier of the First' National Bank of Syracuse, bearing date April 2, 1892, for $100, payable tO' the order of Mamie Haar, and addressed to the First National Bank, N. Y. The draft was delivered to the local agent, Wagner, who, in a day or two thereafter, delivered the same to the husband, and the husband in a few days delivered the same to his wife, who took the same and went to the store of Moore & Schuderer, where she was accustomed to buy goods, near her house, indorsed the same, and it went forward and was collected, she having received from Moore & Schuderer the money. Subsequently, and apparently about the twelfth of April, the plaintiff applied to her attorney, who communicated with the officers of the defendant, who informed the attorney that the claim had been adjusted, and that subsequently this action was brought. Plaintiff appeals from the judgment.

      A. JF. Southworth, for the appellant.

      Walter S. MacGregor, for the respondent.
   Hardin, P. J.:

Plaintiff called as a witness Lambert, the secretary and general manager of the defendant, who testified that the proof of death was received by the defendant February 5, 1892, and that affter the proof was received the company paid $100 on the claim; he also •disclosed the correspondence that had ensued between the company ■and the attorney for the plaintiff just prior to the commencement of this action; that the company took action upon the proof and rejected the claim. He also testified that Colvin, the agent of the company, visited the city of Utica for the purpose of adjusting the claim, and that he made a report to the company of the result of his investigations, and that the company had received the agreement as to a compromise and a return'of the certificate, and the execution by the defendant of its order on its treasurer, bearing •date the 28th of March, 1892, and that the company received the policy by mail from the treasurer and approved it, and returned it to the treasurer; that thereupon the draft for $100, issued by the First National Bank, was obtained. He also testified that the agreement of March twenty-sixth was delivered to the company by Mr. Colvin' after visiting Utica, and that thereupon the company made its order upon its treasurer for the payment of the $100 to the plaintiff, and that it was forwarded by mail. It appears the bank draft was sent to Wagner, the local agent of the defendant in the city of Utica, and in a day or two after receiving the same he delivered the same to the husband of the plaintiff, and the husband of the plaintiff delivered the same to his wife, and the wife indorsed it artd used it to obtain the money on it, and did not restore the money before the commencement of this action. Inasmuch as this' witness was called in behalf of the plaintiff his testimony is to be accepted as entitled to belief. Upon looking into the evidence given by the witness Colvin and the witnesses Herman Haar and the plaintiff herself, it seems to be quite clearly established that the husband had an interview prior to the execution of the paper of the twenty-sixth of March, with the agent, and met him by appointment at the office of Wagner, and that while in the office of Wagner there was quite a discussion over the amount of this claim and an adjustment of it. It seems that Colvin raised some question about the validity of the claim, and, according to the testimony of Herman Haar, the husband of the plaintiff, Colvin first offered to pay five dollars for every one that had been paid towards the policy, and that that offer Haar declined to accept, and thereupon Colvin offered him fifty dollars, for the claim, and Haar declined “ to do anything of the kind; ” and the appeal book shows further as to that interview as follows: “Then he and Mr. Wagner went into another side room and had a conversation and Wagner called me in there; Wagner says, ‘ You had better settle with him, or you won’t get anything at all; ’ Colvin says, ‘ I will make it $75 ; ’ I says, ‘ Can’t you go any more ? ’ He says,. £No;’ Isays, £ Can’t you give about what the old lady cost ? She has. cost about $300 now; ’ £ Well,’ says he, £ that has nothing to do with our company; ’ ‘Well,’ I says, ‘ she was transferred from the Rochester company into your company. You were anxious to get her;’ lie-says, ‘ I will make it $100. The company won’t allow me to do that, and if I report that I have paid you $100, off goes my head.’ I said I would accept the $100 under protest. Says he, ‘ All right, I will write a paper here and you sign it;”’ thereupon the-agreement to accept $100 was made out and signed by Haar in his-own name and in the name of his wife, and witnessed by Colvin. Haar testifies: “ After talking with Mr. Colvin at the office he drew that agreement, and I agreed to accept the $100 in settlement; after that agreement was made I signed it for my wife; well, .yes, I signed it understanding that I represented my wife; the next, morning after I had signed this I told my wife about what I had done; I told her I had signed it for $100.” When the plaintiff,, the wife, was upon the stand she testified her husband “ told me-in the morning that he had made an appointment to meet him down at the company’s office and talk it over; that he was going to see-about a settlement; when he came back he told me that he had settled; I said, ‘ What made you? You didn’t have any authority to settle.’ lie said he had settled for $100; he didn’t say anything about signing an agreement; I did not ask him where the-, money was; he didn’t tell me whether he got the $100 or not.” She also testified that the draft for $100, dated April 2, 1892, was-delivered to her, and that she made an indorsement thereon and got the money on it; she adds, “ I knew what it was for • it was told to me by my husband; he told me when I took it away from him; he had it in his pocket for two days; he told me it was a check for $100 from the insurance company on this policy.” It was admitted upon the trial that “ she knew when she took that and indorsed it that the money was from the insurance company.” She also testified: My husband told me in the morning that he was going down to see about the settlement of that claim. I understood that was the object of his going down. Q. It was to get the matter compromised if he could? A. Yes, sir.”

After a careful perusal of all the evidence it is quite apparent that the adjustment was made by the husband as the agent of the wife, and that she had knowledge that he was to enter into negotiation with Colvin with a view of adjusting the claim and obtaining thereon what money could be secured by way of a settlement, and that shortly after the adjustment was made between the husband and Colvin, that she had information of the details thereof, and understood the facts and circumstances relating to the adjustment before she received the draft, which was made payable to her order, and indorsed by her, and upon which she received the money. All the testimony justifies a belief that she ratified the act of the husband in making the adjustment; she acquiesced in it; she adopted the draft by an indorsement thereof and actually received the money. Even if it be assumed that she had not given explicit authority or exact directions as to the adjustment, yet as she was made aware of the adjustment and accepted the fruits of it, she ratified the settlement.

In Owings v. Hull (9 Pet. 629), it is said that the ratification of an act of an agent previously unauthorized, must, in order to bind the principal, be with a full knowledge of all the material facts. If the material facts be either suppressed or unknown, the ratification is treated as invalid, because founded in mistake or fraud.” This doctrine has been reasserted in Seymour v. Wyckoff (10 N. Y. 213), and numerous other cases. We think the evidence found in the appeal book brings the case within the principle alluded to, and that the plaintiff is bound by the adjustment made. The essential facts which give rise to the conclusion that there was a ratification are not the subject of dispute or contradiction. Nossoiy v. Tomlinson (20 N. Y. Supp. 384), cited by the appellant, differs from the «ase before us, as in that case tlie party had received what was no more than his due ” with full notice “ that it was not accepted in full,” and that it was applied in part payment of the indebtedness. Our attention is called to Ryan v. Ward (48 N. Y. 204), which was a case where there was a payment of a portion of an undisputed account, and a receipt was given in full, and it was held that a party was not precluded from recovering tlie balance. In the case before us there was such a dispute as to the claim prior to the consummation of the adjustment, as to distinguish it from the case just cited. If the trial judge had permitted the case to pass to the jury, and a verdict had been .found upon the evidence in favor of the plaintiff, it is probable that the same views that led him to grant the non-suit would have induced him to have set the verdict aside as against the weight of evidence. Under such circumstances, we think the direction given at the Circuit by the learned trial judge should be sustained.

Merwin and Parker, JJ., concurred.

Judgment affirmed, with costs.