author: ITaigiit, J.:

text:
    Hugh Merancy Murphy, Respondent, v. James W. Whitney, Aurelia W. Moore and Mary Murphy, Appellants.

      Specific performance of a partly executed agreement concerning lands, not in writing.

    Courts of equity will enforce the specific performance of a contract concerning lands, although it is not in writing, when it has been performed on one side and when otherwise one party would be enabled to commit a fraud upon the other.
    A complaint alleged that the owner of certain real estate left, at his death, seven children, sons and daughters, surviving him, who then became tenants in common of the real estate; one of the sons married and had a son, the plaintiff; none of the other children married; all the children, on reaching majority, entered into an agreement that the property should be held in common for the joint use of all, as from time to time they might be living, and that on the decease of any of them, his or her interest was to vest in the survivors, until the title was concentrated in the last survivor, on whose death it should pass to the plaintiff; this agreement was respected by the brothers and sisters, and by deeds and wills they conveyed and devised their interests to each other, until all had died but one sister. The complaint further alleged that this sister, who was made a defendant, was old and feeble, and had been induced by the other defendants to convey the property to them without consideration, and prayed for the establishment of the said trust agreement and for the setting aside of the conveyances made by the defendant, the survivor, to the other defendants, and for an accounting.
    The defendants demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action, and claimed that the alleged agreement was void under the statute, as creating an illegal suspension of the power of alienation and because not in writing, and that the plaintiff had not such an interest in the real estate as authorized him to maintain the action.

      Held, that, assuming that the agreement so far as unexecuted was void under the statute, the defendant, the survivor, could not be compelled to convey or devise to the plaintiff the undivided one-seventh of the real estate owned by her as a tenant in common with her brothers and sisters, but that as to the other six-sevenths, as to which the agreement had been executed by the other tenants in common by conveying and devising their shares to her, she would not be permitted to repudiate the agreement under which she had taken title, as such a repudiation would be a fraud upon all her deceased brothers and sisters, and that on her death such shares should go to the plaintiff;
    That the plaintiff, as the equitable owner of the reversion of the six-sevenths of the real estate which had come to the defendant as survivor under the agreement, could maintain the action.
    Appeal by the defendants, James W. Whitney, Aurelia W. Moore and Mary Murphy, from an interlocutory judgment of the Supreme Court, entered in the office of the clerk of Genesee county on the 18th day of February, 1893, upon a decision of the court rendered at Special Term, overruling the defendants’ demurrer to the plaintiff’s complaint.
    The action was brought to set aside certain conveyances of property as having been made by the defendant Mary Murphy in fraud of a certain trust agreement. The complaint prayed that the trust agreement be established and that the conveyances made by the defendant Mary Murphy be set aside, and that .an accounting be ordered.

      Q. Van Voorhis, for the appellants.

      M. H. Peels, Jr., for the respondent.
   ITaigiit, J.:

This action was brought for the purpose of establishing a trust agreement, the setting aside of various conveyances of real estate from the defendant Mary Murphy and her sister to the defendants James' W. Whitney and Aurelia W. Moore, and for an accounting, •etc. The defendants demurred upon the ground that the complaint ■did not state facts sufficient to constitute a cause of action.

The complaint is very voluminous, and a detailed statement of the facts would fill many pages. We are asked to consider three questions, and the allegations upon which they are founded may be briefly stated.

Hugh Murphy, the grandfather of the plaintiff, died at Le Boy, 'Genesee county, in the year 1826, possessed of the real estate in question, and leaving him surviving three sons and 'four daughters. Upon his death the seven children became tenants in common of such real estate. One of the sons, Joseph Merancy Murphy, was married about the year 183Y, and the plaintiff is the issue of such marriage. None of the other children married. After they had reached their majority, by a common agreement and understanding between them, it was understood and agreed that the said lands and buildings constructed thereon were to be held by them as property i,n common, for the joint use of all, as from time to time they might be living; and on the decease of any of them the interest of such deceased person was to vest in the survivor or survivors, for the purpose aforesaid, until the title and interest in the same was and was to be concentrated in tlie last of such survivors; and that the title and interest of and in said property on tlie death of the last of such survivors was to pass to and become vested in the said Hugh Merancy Murphy, plaintiff herein, as the sole representative of the family name and estate of the Murphy family aforesaid; that such transmission of interest and estate was to be made through descent or by will, as might best serve to accomplish the purpose so agreed upon.” This understanding or agreement was respected by the brothers and sisters. And for the purpose of carrying it out, the brothers conveyed their interest in the real estate to the sisters. The sisters, on the 20th day of April, 1857, each executed a will, in which she devised her interest in the real estate to such of her sisters as survive, and if none survived, then to the plaintiff. Later, one of the sisters conveyed her interest to the surviving sisters. And still later, other wills were made by the survivors, containing provisions hi substance the same as in the former wills, so far as concerned the real estate, but containing some slight variation as to bequests of the personal estate. Thus was the title transmitted to the survivors. One after another of the brothers and sisters died. And the defendant Mary, who, at the date of the bringing of this action was ninety-five years of age, alone survives with the plaintiff, her nephew. It is alleged that she is weak, feeble, infirm and mentally and physically unable to properly transact business; that the defendants Whitney and Moore have, by false and fraudulent statements, prejudiced her against the plaintiff, and induced her to convey to them, without any consideration, from time to time, the lands and property of the estate; that they have induced her to sell lands to other parties, and they, or one of them, have converted the proceeds, etc.

It is claimed, first, that the alleged agreement is void, under the statute which provides that “ The absolute power of alienation shall not be suspended by any limitation or condition whatever for a longer period than during the continuance of not more than two lives in being at the time of the creation of the estate.” (1 R. S. 723, § 15.)

Second. That the agreement is void, because not in writing. (2 R. S. 134, § 6.)

Third. That.the plaintiff has not such an interest in the real estate as will authorize him to maintain this action.

The first two questions, we shall consider together, and shall assume for the purposes of this case that the agreement, in so far as it remains wholly unexecuted, is void under the provisions of the statute referred to. The agreement remains unexecuted so far as the defendant Mary Murphy is concerned. She, as a tenant in common with her brothers and sisters, was the owner of an equal undivided one-seventh part of the real estate. The agreement being void she cannot be compelled to convey or devise the same to the plaintiff. But her situation as to the other six-sevenths is different. Her title to that has come through her brothers and sisters, with the understanding and agreement that she should have the use of it during life, and that the remainder should go by descent or devise to the plaintiff. The agreement has been fully executed by all of her brother? and sisters who were tenants in common with her. They have each conveyed by deed or devised by will the real estate to her in accordance with the terms of the agreement. She was a party to the agreement, has taken title under it, the agreement has been executed as to all of her co-tenants in common, and to permit her now to repudiate it would be to sanction a fraud upon all of her deceased brothers and sisters. This cannot be done, either under the principles of estoppel or under the statute. Section 10 of the statute referred to provides (2 R. S. 135): “Nothing in this title contained shall be construed to abridge the powers of Courts of Equity to compel the specific performance of agreements in cases of part performance of such agreements.” As we have seen, the agreement has been already performed by all of her co-tenants in common. Under this provision of the statute the power is expressly reserved to courts of equity to compel specific performance in such cases. And in Ryan v. Dox (31 N. Y. 307, 311), Davies, Ch. J., in delivering the opinion of the court, says: “ It is well settled that Courts of Equity will enforce a specific performance of a contract within the statute when the parol agreement has been partly carried into execution. (2 Story Equity, Section 759.) And the distinct ground upon which Courts of Equity interfere in cases of this sort is, that otherwise one party would be enabled to practice a fraud upon the other, and it could never be the intention of the statute to enable any party to commit such a fraud with impunity. Indeed, fraud in all cases constitutes an answer to the most solemn acts and conveyances, and the objects of the statute are promoted, instead of being obstructed, by sucli a jurisdiction for discovery and relief. And when one party has executed his part of the agreement, in the confidence that the other party would do the same, it is obvious that if the latter should refuse it would be a fraud upon the former to suffer his refusal to work to his prejudice.”

In Wood v. Rabe (96 N. Y. 414, 422), Andrews, J., says: “ But there is a large class of so-called constructive trusts, or Trusts ea? maleficio, where Courts of Equity treat the holder of the legal title to land as a trustee, and, through the medium of an assumed trust, make that title subservient to the circumvention of fraud and the attainment of justice. Trusts of this character are not, I assume, within the exception in the statute.” (See, also, Moyer v. Moyer, 21 Hun, 67.)

Has the plaintiff such an interest as will enable him to maintain the action? It is alleged, as we have seen, that the defendant Mary Murphy has conveyed away all of the farm. By this act she has put it beyond her power to perform the agreement. If, as we have seen, she held six-sevenths of the real estate in trust under an agreement to devise, or to permit it to descend under the statute to the plaintiff, then he was the equitable owner of the reversion, and as such, we think, could maintain the action. (Youngs v. Carter, 10 Hun, 194; Piper v. Hoard, 107 N. Y. 73.)

The judgment should be affirmed, with costs, but with leave te the defendants to withdraw demurrer and answer within twenty days, upon payment of the costs of the demurrer and of this appeal.

Dwight, P. J., Lewis and Macomber, JJ., concurred.

Interlocutory judgment appealed from affirmed, with costs, but with leave to the defendants to withdraw demurrer and answer over within twenty days upon payment of the costs of the demurrer and of this appeal.


source: Caselaw Access Project

author: Haight, J.:

license: Public Domain

text:
    John B. M. Stephens, as Receiver of the Property of Frank Aldrich and Charles W. Perrine, Respondent, v. Mary J. Perrine, Frank Aldrich and Charles W. Perrine, Appellants.

      General creditors defeated by a sale of property under a chattel mortgage void for nonfiling — receiver in supplementary proceedings — maintenance of an action by him to annul a chattel mortgage made by his judgment debtor.

    Creditors, in order to take advantage of a chattel mortgage given by their debtor to a third party and void by reason of its not having been filed, must first acquire a lien upon the mortgaged property by virtue of a levy or other legal process, and that must be done before the mortgagor has disposed of his interest in the property or the mortgagee has reduced the property to possession and sold it to satisfy his claim.
    A receiver appointed in supplementary proceedings cannot maintain an action to have a chattel mortgage, given by the judgment debtor adjudged to be fraudulent and void as against the claims represented by the receiver, and to compel the mortgagee to account for the property sold by him by virtue of the mortgage, when the mortgage, although originally void as to third parties by reason of its not having been filed within a reasonable time after its execution, was filed and the property covered by it reduced to possession and sold by the mortgagee to satisfy his claim before the judgment creditors represented by the receiver recovered their judgments, and where the mortgage, as matter of fact, was not given with intent to defraud creditors.
    Appeal by the defendants, Mary J. Perrine, Frank Aldrich and Charles W. Perrine, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of Monroe county on the 31st day of December, 1892, upon the report of a referee.

      William B. Hale, for the appellants.

      Albert H. Harris, for the respondent.
   Haight, J.:

This action was brought to adjudge a chattel mortgage fraudulent and void as against the claims which the receiver represents, and to procure a judgment directing the defendant Mary J. Perrine, to account for the value of the property sold by her by virtue of the mortgage.

The defendants Frank Aldrich and Charles ~W. Perrine were copartners engaged in business at the city of Rochester; on the 21th day of February, 1892, they borrowed from the defendant Mary J. Perrine, $2,250, and on the next day, to secure such loan, executed and delivered to her a chattel mortgage upon certain personal property belonging ta them. On the 30th day of March, 1892, she caused the mortgage to be filed in the office of the clerk of Monroe county and on the same day took possession of the property, advertised and subsequently sold it. On the 4th day of April, 1892, Bradley Redfield and another recovered a judgment against the defendants Aldrich and Perrine, and on the nineteenth day of April thereafter an order was made by the county judge of that county in proceedings supplementary to execution had upon the judgment, appointing the plaintiff receiver of the property of the defendants Aldrich and Perrine.

The referee has found as facts “ that said chattel mortgage was made by said defendants Prank Aldrich and Charles W. Perrine, without any intent on their part to hinder, delay or defraud any of the creditors of said firm; that said chattel mortgage was received by said defendant Mary J. Perrine, to secure a valid indebtedness and without intent on her part to hinder, delay or defraud any of the creditors of said firm.” And as conclusions of law, that the chattel mortgage is void as against the plaintiff and judgment creditors whom he represents, and that the plaintiff is entitled to judgment against the defendant Mary J. Perrine, for the sum of $1,017.43, with interest, costs, etc. Exceptions were taken to these conclusions of law which present the questions brought up for our review.

It is contended on behalf of the respondent that the judgment can be sustained upon the authority Thompson v. Van Vechten (27 N. Y. 568); Vreeland v. Pratt (42 N. Y. St. Repr. 582); Karst v. Gane (61 Hnn, 533), whilst on behalf of the appellants it is claimed that the receiver in supplementary proceedings cannot maintain the action.

Does a cause of action exist under the facts as found ? The cases upon which the respondent relies do not sustain his right to recover; they merely hold that a chattel mortgage not filed, of a chattel not delivered, is void as to a creditor at large, and that the term creditor Used in the statute includes any person whose debt accrued either before or after the chattel mortgage was given, but before it was filed. One case, that of Karst v. Gane, has recently been affirmed in the Court of Appeals (49 N. Y. St. Repr. 740), and we 'must consequently consider that question settled. But a very different question is here presented. In this case the mortgage was given in good faith, and was free from the taint of fraud. The mortgagee filed the mortgage, reduced the property to possession and sold it by public sale before the recovery of the judgment under which the plaintiff was appointed receiver. Under the statute the mortgage was void as to creditors for the reason that it was not filed within a reasonable time after it was given. Their position in reference to the property was the same as if no mortgage had been given. It was subject, to the levy of an execution or other legal process. But whilst the mortgage was void as to creditors, it was valid as to the mortgagors. Before the lien of the creditors attached they had the right to sell the property, subject of course to the lien of the mortgagee, or to dispose of the property in payment of the mortgage debt. They could even sell it to the mortgagee for a fair price in payment of her claim, thus dispossessing themselves of any interest in the property, or right of redemption; it would be but the preferring of the claim of one of their creditors and the others would have no cause of complaint. It would be the same as if there had been no mortgage and the defendants Aldrich and Perrine had seen fit to sell the property to the defendant Mary in payment of her claim. This they unquestionably had the right to do. Hence, it follows, that creditors, in order to take advantage of a void mortgage by reason of its not having been filed, must first acquire a lien upon the property by virtue of a levy, or other legal process, and that must be done before the mortgagor has disposed of his interest therein or before the mortgagee has reduced the property to possession and sold it to satisfy his claim.

In the case of Thompson v. Van Vechten (supra), Denio, Ch. J., in delivering the opinion of the court says : It is true, the mortgage cannot be legally questioned until the creditor clothes himself with a judgment and execution, or with some legal process against his property; for creditors cannot interfere with the property of their debtor without process.” In the case of Jones v. Graham (77 N. Y. 628), it was held that one not having a judgment and execution is not such a creditor as can take advantage of an omission to file a chattel mortgage. To the same effect is Button v. Rathbone, Sard & Co. (126 N. Y. 187); Bullard v. Kenyon (21 N. Y. Supp. 32); Field v. Baker (12 Blatchf. 438, 443); Lane v. Lutz (3 Abb. Ct. App. Dec. 19-26).

Jones on Chattel Mortgages, at section 243, says: “Possession taken under a mortgage, or a record of it made shortly before the insolvency or bankruptcy of the mortgagor, is sufficient to protect a mortgagee.” And again he says: “ The mortgage is valid between the parties without either record or possession, if it be made at a time when the law imposes no restriction upon the’ dealings of the parties with reference to creating a preference, although the mortgagee delays to record it, or to take possession under it, until a short time before the mortgagor’s insolvency, when the law would prohibit the making of the mortgage as a preference; yet the mortgage may then be made effectual by the mortgagee’s recording it, or taking possession under it, because he only asserts and makes secure a right which he had previously acquired.” And again at section 245 he says: “ As against general creditors, having no lien by attachment, an unrecorded mortgage is valid and conclusive, unless it can be impeached as fraudulent, or as giving a preference under a bankrupt or insolvent law. But in New York it is held that a mortgage not duly filed is void ’as against a general creditor whose claim has accrued during the continuation of the default in filing the mortgage, although the creditor is not in a position to raise the question until he has obtained judgment or process against the property. The object of the act is to prevent the setting up of secret mortgages against persons who may deal with the mortgagor, on the faith that Ms property is not thus incumbered.” In the case of Hale v. Sweet (40 N. Y. 97-103), it is said by Jambs, J., in his dissenting opinion that “ as between mortgagor and mortgagee, the instrument was a valid and binding security, notwithstanding the omission to file. A breach of its conditions entitled.the mortgagee to take possession of the property mortgaged, and, if he did so before any lien of a creditor of the mortgagor attached, such possession would hold the property.” That case was disposed óf upon other grounds, but the prevailing opinion does not question the soundness of the proposition quoted. In Powell v. Preston (1 Hun, 513) it was held that after a conditional sale of goods, under which the title was to remain in the vendor until certain moneys should be paid by the vendee, the sheriff will not be protected in levying upon the goods under an execution against the vendee, when before such levy the vendor had taken possession of the goods, and in that action brought by the vendor against the sheriff for taking and selling the goods, it was held that in the absence of fraud he was entitled to recover their fair value. In the case of Tremaine v. Mortimer (128 N. Y. 1), Sewell had executed a chattel mortgage to one Chase, the mortgage was filed, but it was not refiled until about six months after the expiration of the year, and subsequently the mortgagee took possession of the property, default having been made in the conditions thereof. The day following Sewell made a general assignment for the benefit of creditors. Subsequently the property was levied upon and sold by virtue of executions issued upon judgments that had been recovered against Sewell. In an action by the purchaser under such sale for a conversion of the property, it was held that he acquired no title to the imoperty under the sale on the executions and the complaint was dismissed. Earl, J., in delivering the opinion of the court says: “ While the moi’tgage in the case mentioned in the act is valid as between the parties thereto, it is void as to the creditors of the mortgagor. But the act confers no title to the property upon the creditors, and by virtue of the act they take no interest in it. The mortgage is not to be treated as made for their benefit, and the mortgagee does not hold the property in trust for them. The effect of the statute is simply that, in the case mentioned, as between the creditors and the mortgagor, the mortgage has no force or operation whatever, and the case is to be treated as if the mortgage had never existed. While the mortgage is void as to creditors, they cannot touch the property until they come with an execution. As between the mortgagor and creditors, if the latter can claim that the mortgage had no existence, so also can the former make the same claim. They cannot at the same time assert its invalidity and validity. They cannot seize the property as belonging to the mortgagor, and at the same time deny that he has any title to the property. They must constantly stand upon the position that- the mortgage is a nullity. As between them and the mortgagor, both parties have the right to act as if the mortgage had never existed, and before the creditors obtain a lien on the property by virtue of their executions, the mortgagor may deal with the same in any honest way. He may sell it and convey an absolute title, subject to any rights the mortgagee has; or he can deliver the property to the mortgagee in payment of the debt secured by the mortgage.”

In Wheeler v. Lawson (103 N. Y. 40), Shoemaker executed a chattel mortgage to the plaintiff’s assignor. The mortgage was not filed. He subsequently made a general assignment for the benefit of creditors. The assignee, with the consent of Shoemaker, surrendered the property to the plaintiff as assignee of the mortgage, from whom it was taken by the sheriff upon an execution issued upon a judgment against Shoemaker, rendered after the property came into the possession of the plaintiff. It was held that the invalidity of the mortgage by reason of its not having been filed did not justify the taking of the property upon the execution.

In Kitchen v. Lowery (127 N. Y. 53), it was held that a creditor can only avail himself of the omission to file a chattel mortgage when he has a judgment, and proceeds under it to obtain a lien upon the mortgaged property by levy, or otherwise, and that this must be done before the mortgagee has reduced the property to possession and sold it. In Karst v. Gane (49 N. Y. St. Repr. 740-744), Andrews, Ch. J., in delivering the opinion of the court, after speaking of the failure to file the mortgage .for six weeks, says: “ The simple contract creditor runs the risk of having Ms remedy to assail the mortgage defeated by a Toona fide transfer of the property by the mortgagor to the mortgagee in payment of the mortgage before lie has obtained judgment and execution, or any lien on the property.”

The question thus appears to be settled beyond controversy. As we have seen, the mortgagee had reduced the mortgaged property tp possession, sold it, and applied the proceeds upon her claim before any judgment was obtained or lien perfected against the property ; and under the cases to which we have referred she cannot now be made to account for the proceeds of the sale.

Whether a receiver appointed in supplementary proceedings could maintain an action of this character under a different state of facts it is not necessary to now determine. If the mortgaged property was still in the possession of the mortgagor, where it could be reached upon execution, no action would be necessary.

Upon the appointment and qualification of a receiver he becomes vested with the property of the judgment debior. If, before such appointment, the mortgagee has seized the property upon his mortgage and sold it, he, by that act, divested the mortgagor of all interest in the property or right of redemption, leaving nothing to pass to the receiver upon his appointment. In this case the title of none of the mortgaged property vested in the receiver. Under the statute he is authorized to disaffirm, treat as void and resist all acts done, transfers and agreements made in fraud of the rights of creditors. But the referee having found as a fact that the transaction in question was not fraudulent, we fail to see how the plaintiff can maintain this action.

The judgment should be reversed and a new trial ordered, costs to abide a final award of costs.

Dwight, P. J., Lewis and Maoomber, JJ., concurred.

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


text:
    Nellie Quinlen, an Infant, by Her Guardian ad Litem, Respondent, v. James H. Welch, Appellant.

      Bight of action under the Civil Damage Act —posthumous child.

    The right of action given by the Civil Damage Act (Chap. 646, Laws of 1873) to every child who shall be injured in means of support in consequence of the intoxication of any person, extends to a child of a father killed through intoxication, although such child may be born after the death of the father.
    Appeal by the defendant, James H. Welch, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of Cattaraugus county on the 12th day of September, 1892, upon a verdict rendered at the Cattaraugus Circuit, and from an order denying the defendant’s motion for a new trial, made upon the minutes.

      J. Arthur Oorbin, for the appellant.

      F. W. c& E. F. Krxtse, for the respondent.
   Haight, J.:

This action was brought to recover damages under chapter 646 of the Laws of 1873, known as the “ Civil Damage Act.”

The evidence tends to show that the defendant was the owner of the premises and rented them to one O’Leary; that intoxicating drinks were sold to Dennis Qninlen ; that he became intoxicated, wandered upon the railroad track, and was run down and killed by a passing train.

The plaintiff is a daughter of the deceased, but was born one day after his death, and the question is as to her right to maintain this action.

The act gives a right of action to every husband, wife, child, etc., who shall be injured in person or property or means of support by any intoxicated person or in consequence of the intoxication, habitual or otherwise, of any person, against any person or persons who shall by selling or giving away intoxicating liquors have caused the intoxication in whole or in part of such person or persons, and any •person or persons owning or renting or permitting the occupation of any building or premises and having knowledge that intoxicating liquors are to be sold therein.

The question, therefore, is as to whether the plaintiff is a child within the meaning of this statute.

She was, as we have seen, en venire sa mere, and such a child, for the purpose of enabling it to take an estate or for any purpose which is for its benefit, is regarded to be m esse if it should afterwards be born alive.

Blackstone says such an infant is supposed to be born for many purposes. It is capable of having a legacy or a surrender of a copy-hold estate made to it. It may have a guardian assigned to it, and it is enabled to have an estate limited to its use and to take after-wards by such limitation as if it were then actually born. (1 Black. Comm. 130.)

It has been held that the civil rights of such an infant are equally respected at every period of gestation; and it is clear that, no matter at how early a stage, it may be appointed an executor, is capable of taking as legatee or under a marriage settlement, may take specifically under a general devise as a child, and may obtain an injunction to stay wastes. (Wharton’s Am. Cr. Law, 537; Com. v. Parker, 9 Metc. 263 ; State v. Cooper, 2 Zabr. 57; Smith v. State, 33 Maine, 48; In the Matter of Winne, an Infant, 1 Lans. 508-513 ; Marsellis v. Thalhimer, 2 Paige, 35; Hone v. Van Schaick, 3 Barb. Ch. 488-509 ; Jenkins v. Freyer, 4 Paige, 47-53 ; 10 Am. & Eng. Ency. of Law, 624.)

We are aware that these cases chiefly relate to the distribution of estates of deceased persons, and it may be claimed that the rule adopted in such cases should not be applied to the one. under consideration.

Our attention has been called to no case in which the Civil Damage Act has become the subject of judicial construction as to this question.

The statute gives to a child the right of action for an injury to its means of support.

A child during the years of its infancy before arriving at an age that it can care for and maintain itself, is entitled to receive support from the parent, and if deprived of such parent, suffers damage in its means of support. An unborn child, if subsequently born alive, if deprived of a parent suffers in its means of support equally with the children that were living at the time of the decease of such parent. Such a child, as we have seen, is regarded as in being and is placed upon an even footing with the living children in reference to the distribution of the estate of a deceased parent; and no reason is apparent why the same rights should not be extended to such a child under the act in question.

In the case of The George cmd Richard (L. B. [3 Adm.] 465), an action was brought in Admiralty to limit the liability of the owners of the brig George amd Richard against the owners of the bark Fluthuria. A collision had occurred between the vessels, the result of which was the drowning of Philip Noyes. He left a widow .him surviving enceinte. The widow appeared in the action in behalf of her unborn child, and it was held that in case the child should be born alive it would be entitled to damages, and the judgment entered in the case reserved the rights of the infant when born to prefer its claim for damages before a register. The action was based upon an act known as Lord Campbell’s Act (9 and 10 Viet. chap. 93). It gave to the widow and children compensation in cases where the act, neglect or default is such as would, if death had not ensued, have entitled- the party injured to maintain an action at common law. As damages it gave the pecuniary loss. The decision was based upon the theory that had the father of the child not been killed by the collision, he would in the ordinary course of things have contributed to the support of the child when born.

In this respect the case has an important bearing upon the one under consideration.

In the case of Walker v. The Great Northern Railway Company of Ireland (28 L. Rep. [Ireland] 69; S. C., 26 Am. Law Rev. 50), reference to which is made in volume 43 Albany Law Journal, 464, the action was brought by the infant for damages it had sustained before birth whilst the mother was traveling upon the defendant’s railway. It was held that she could not recover, but the decision' appears to have been placed upon the ground that the railroad company had contracted only to carry the mother, to whom it alone was liable for any injury resulting from the negligence of its servants; that whilst the railroad company must be regarded as the common carrier of the mother, under the law of the Emerald Isle,” as understood by the court, the mother was the common earner of her unborn child.

We do not regard this case as in conflict with any of the views expressed in the case of the “George and Richard” (supra).

The questions raised in reference to the repeal of the Civil Damage Act, by chapter 403 of the Laws of 1892, have been considered by us at this term of court in the case of Reinhardt v. Fritzsche.

The judgment should, therefore, be affirmed.

Dwight, P. J., Lewis and Macombeb, JJ., concurred.

Judgment and order appealed from affirmed.

      Rep. ante, page 565.


text:
    David W. Gregg, Appellant, v. William Boyd, Respondent.

      Landlord and, tenant — the right of an outgoing tenant to the away-going crop lost by a re-entry of the landlord under the terms of the lease.

    Where an outgoing tenant of a farm has the right to the away-going crop he, in contemplation of law, retains possession of the land upon which the crop is growing, and has the right to enter to harvest it; but if he surrenders the possession of the farm, including the land upon which the crop is growing, or if he is ousted from the same by judicial proceedings, or if, under the terms of his lease, the landlord re-enters and takes possession of the same, the tenant’s right to the away-going crop is lost, and neither he nor his mortgagee of the crop can recover the same.
    Appeal by tbe plaintiff, David W. Gregg, from a judgment of tbe Supreme Court in favor of tbe defendant, entered in tbe office of tbe clerk of Livingston county on the 26th day of October, 1892, upon a nonsuit ordered by tbe court at tbe Livingston Circuit.

      L. O.Heecl, for tbe appellant.

      J. H. Coyne, for tbe respondent.
   Haight, J.:

This action was brought to recover tbe value of a quantity of wheat alleged to have been converted by the defendant.

On tbe 3d day of March, 1891, one William R. Curry leased of the defendant, William Boyd, a farm for tbe term of one year, with the privilege of three years, from the 1st day of April, 1891, at tbe annual rent of $400, one-half to be paid on tbe first day of October, ■and tbe other half on tbe first day of April thereafter. Tbe lease was in writing, and contained tbe following: “ Tbe party of tbe second part is bound to divide all tbe wheat be puts in over ten acres, tbe year be leaves tbe farm.” Curry entered into tbe possession of the farm under tbe lease, and about tbe first of October, sowed about thirteen and one-half acres of wheat, and thereafter and on tbe tenth day of October, executed and delivered to tbe plaintiff a chattel mortgage covering all of bis interests in the wheat. Curry elected not to run tbe farm for the second and third years, gave notice to that effect and at the close of tbe year the defendant took possession and leased it to another person. On tbe first day of Oetobei Gurry paid upon the rent then due $197. He did not pay the installment falling due at the end of the year. In July following, at the instance of the plaintiff, he entered thé premises, harvested the wheat and stored it in the barn on the premises. The defendant thereupon took possession of the wheat, threshed it, and upon demand of the plaintiff made upon his chattel mortgage, which he then had present and read to the defendant, he refused to surrender the wheat or any part thereof. Hpon the trial evidence was given on behalf of the plaintiff to the effect that the former tenant-had the same quantity of wheat growing upon the place, and that it was understood between Curry and the defendant that Curry-should have one-half of all the wheat harvested over ten acres; that the former tenant came upon the premises during Curry’s term,, harvested the wheat, put it in the barn, threshed it and took it all away without giving him any portion thereof; that on complaining to the defendant of this conduct, the defendant told him to put in just the same number of acres that the former tenant had in and it would be all right, “ that he could take the crop off that he put in.”' This evidence was controverted by the defendant.

It is claimed that upon the surrender of the premises by Curry at the end of the year the wheat then growing upon the premises became the property of the defendant. Wood in his work on Landlord and Tenant (ed. Banks Bros.), at section 560, says: “ The right which an out-going tenant has to take an away-going crop, which is the crop sown during the last year of his tenancy, but not ripe until after the expiration of it, is sometimes given to him by the express, terms of the lease or agreement, and sometimes by the custom of the country. Such custom, or more properly speaking usage, has been held to be reasonable and valid and to apply equally to tenants by oral agreement, or by writing, or even by deed. Such a custom is good and just and for the benefit and encouragement of agriculture ; for that it is but reasonable that he who sows should reap the. profit.”

But we do not in this case understand that the rights of the parties are dependent upon a custom of the country, for it appears to us that they are disposed of by the terms of the lease. As we have seen, it contains the provision that “ the party of the second part is bound to divide all the wheat he puts in over ten acres, the year he leaves the farm.” This provision inferentially contemplates the sowing of the wheat upon the farm and the gathering of the same. The lease ended on the 31st day of March, 1892. "Wheat sowed in the fall would not mature until the following July. Ten acres is to be the tenant’s, all over that amount was to be divided between the landlord and tenant. The fair and reasonable construction to be placed upon this provision is that the tenant should have the right to harvest the same, and that it remained his with the exception of the part over ten acres, which was to be divided with the landlord. If this provision was modified by the oral agreement referred to, then it would all belong to the tenant and the landlord would have no interest therein. It consequently appears to us that the wheat belonged to Curry and that the title was transferred by him to the plaintiff under the mortgage referred to, subject to the conditions imposed in the lease.

Was this wheat surrendered to the defendant at the termination of the lease ? Boyd testified that Curry told him lie might come and take possession of the premises; that he did take possession and relet the farm. Curry testified that he never had any conversation with the defendant on the subject of surrendering the thirteen acres of wheat to him; that there was nothing said upon that subject, except that he elected not to go on another year on the farm. We do not think the court upon this evidence alone would be justified in holding that there was a surrender. The most that can be claimed for it is that it raised a question of fact for the determination of the jury. (Wood’s Landl. & Ten. § 499.)

But there is another question which appears. to us to dispose of the case and to sustain the court in its direction of a nonsuit. Curry, in his testimony, conceded that he had not paid all of the rent due under the lease; that he had paid only the sum of $197. There was, therefore, due on the first day of April $203, which was not paid. ' The lease contained a provision that in case the tenant should fail to pay the rent, or any part thereof, the defendant might re-enter the premises. The defendant did re-enter, and now claims that he r.e-entered upon the whole of the premises because of the non-payment of the rent, and that he had the right so to do under the lease. When the outgoing tenant has the right to the away-going crop he, in contemplation of the law, retains possession of the lands upon which the crop is growing; lie lias the right to enter to repair fences to protect the growing crop, and when it ripens to harvest it. In other words, he has the custody and control of it and retains the possession of the lands for that purpose. But if he surrenders possession of the farm, including that upon which the crop is growing, or if he is ousted from the same hy judicial proceedings, or if under the terms of his lease the landlord re-enters and takes possession of the same, the tenant’s right to the away-going crop is lost, and neither he nor his mortgagee can recover the same. If summary proceedings should he instituted to remove a tenant for the non-payment of rent during the term and he should be removed under a judgment entered in such proceedings, he could not thereafter re-enter upon the premises. for the purpose of gathering maturing crops. And if the landlord re-enters under a power given in the lease, we fail to see how the situation would be changed, or the right of the tenant would' be different from that where the re-entry was made under a judicial decree. In either case the possession is taken of the whole premises, including that upon which crops may be growing.

Before summary proceedings can be instituted to recover the possession of leasehold premises on account of the non-payment of rent, at least three days’ notice, in writing, requiring the payment of rent and the possession of the premises mu$t be served. (Oode Oiv. Pro. § 2231.)

But when six months’ rent is in arrear upon a grant reserving rent, or upon a lease of real property, and the grantor or lessor or his heir, devisee or assign has a subsisting right by law to re-enter for the failure to pay rent, he may maintain an action to recover the property granted or demised without any demand of the rént in arrear or re-entry on the property. (Code Civ. Pro. § 1504.)

As we have seen, the first installment of rent became due on the first day of October. One hundred and ninety-seven dollars only was paid. A portion of the installment remained owing from that date, which was more than six months before the re-entry was claimed to have been made by the defendant. He, therefore, had the right to maintain ejectment without demand of the rent in arrear. (Samson v. Rose, 65 N. Y. 411-419.)

And if he could re-enter peaceably, no action was necessary.

In Bliss v. Johnson (73 N. Y. 529-534), Andrews, J., in delivering the opinion of the court, says: i! 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 any attempts 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.” (McAdam on Landl. & Ten. § 104; People v. Fields, 1 Lans. 241-244; Mussey v. Scott, 32 Vt. 82; Sharp v. Kinsman, 18 So. Car. 108.)

In Abrahams v. Tappe (60 Md. 317), it was held “ that the mortgagee of the leasehold interest took it subject to all the conditions and covenants of the lease,” “ that the rent having been allowed to remain unpaid for more than one year and the landlord having by reason of that default and in the assertion of Jier right as landlord secured an actual and peaceable re-possession of the premises * * * the lease became absolutely forfeited and the mortgage, so far as it affected the premises, fell with it.”

In 2 Platt on Leases, 331, it is said: “ On re-entry the lessor is entitled to the emblements, and notwithstanding his taking advantage of the forfeiture, he retains unprejudiced any right of action that he may have for breaches of covenants committed by the lessee previously to the re-entry.”

In Fry & Co. v. Ford (38 Ark. 246), it was held that when a tenant abandons his crop and fails to perform the terms of his lease the landlord may gather * * * (the same) and take out of it and retain against the tenant’s mortgagee of the crop, the expenses of preserving it from waste and preparing it for market, as well as the rent.”

In Davis v. Eyton (7 Bing. 154), a lease had been granted on condition that if the lessee contracted a debt on which he should be sued to judgment which should be followed by execution, the lessor should re-enter as of his former estate. The lessor having re-entered after judgment and execution, it was held that he was entitled to the emblements. (See, also, Debow v. Colfax, 5 Halst. 128 ; Smith & Soden’s Landl. & Ten. 290.)

The case of Duffs v. Bangs (122 N. Y. 423), is not in point. In that case the landlord before re-entry had told the owner of the nursery stock that he might enter upon the premises in the spring and remove the same. The owner of the nursery stock relied upon this promise and did not remove it until the following spring, and it was held that under such circumstances the landlord was estopped from claiming ownership of the stock.

The judgment should be affirmed.

Dwight, P. J., Lewis and Macomber, JJ., concurred.

Judgment appealed from affirmed. ■


author: Haight, J: :

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

      Parol promise to maintain a fence — barbed wire railroad fence.

    A parol promise by a railroad company to maintain a particular kind of fence along its right of way, is not an agreement that runs with the land.
    A barbed wire fence along a railroad track is not necessarily dangerous and a nuisance; it may or may not be, depending upon circumstances. (So held in a case arising before the passage of chapter 367 of the Laws of 1891, which prohibits barbed wire railroad fences.)
    Appeal by the defendant, the New York Central and Hudson River Railroad Ca-mpany, from a judgment of the Cayuga County Court, entered in the office of the clerk of that county on the 30th day of March, 1891, affirming a judgment of a Justice’s Court upon appeal taken upon questions of law only.

      J. W. Dunwell, for the appellant.

      James Wright, for the respondent.
   Haight, J: :

-This action was brought to recover damages for injuries received by the plaintiff’s mare on a barbed wire fence. The plaintiff, in his complaint, alleges that he is the owner -of a farm adjoining the defendant’s railroad; “ that along the lands of plaintiff said defendant constructed and put up a barbed wire fence, and has continued to maintain the same until the grievances hereinafter alleged. That such barbed wire fence was put up and maintained against the express wish and consent of plaintiff, and contrary to a contract made by and between said West Shore Company and plaintiff at time of going through the iands of plaintiff. That about January first, plaintiff had a certain mare in a pasture lot adjoining said West Shore railroad, and she became entangled in said barbed wire fence above described, and cut, maimed, mutilated and otherwise injured herself to the extent of forty dollars, and for medicine used to heal her ten dollars, including doctoring. Wherefore, and by reason of the premises plaintiff demands judgment against said defendant for the sum of fifty dollars.”

Upon the trial evidence was given tending to show that at the time the West Shore contemplated building its road, a man came there to buy the right of way through the farm in question, and said that he would pay $200 per acre for the land, and would build a board fence and dig a ditch two feet deep and four feet wide. The plaintiff was not at this time the owner of the land, but he subsequently became the owner. We do not understand that a parol promise to maintain a fence is an agreement that runs with the land. (See Pierce on Railroads, 424, and authorities there cited.)

It consequently does not become necessary to consider the evidence for the purpose of determining whether it is sufficient to sustain the alleged agreement' to build a board fence, or the exceptions that have been taken to the admission of evidence upon the trial in an attempt to establish such an agreement. The County Court, in its review, was of the opinion that the action could be maintained as one for negligence, and we have examined the case for the purpose of determining whether such a cause of action was established. The complaint, as we have seen, fails to allege any act of negligence on the part of the defendant. The only allegation bearing upon the question is, That along the lands of plaintiff said defendant constructed and put up a barbed wire fence and has continued to maintain the same until the grievances hereinafter alleged.” It does not allege that such fence was dangerous. Unless, therefore, the court can say that a barbed wire fence is dangerous and a nuisance jper se, the action cannot be maintained on the ground of negligence. Rut assuming that the complaint is sufficient to authorize a recovery upon that ground, there is an absolute failure of evidence to establish negligence. The only evidence given upon the subject is by the plaintiff himself, and is as follows: “ The fence is a barbed wire fence on the south and north side of West Shore railroad. The fence where the mare was hurt is on the north side of the railroad; are six or seven acres in the field. The barbed wire fence is along the railroad. It is the same fence that West Shore company put up and has been there until now. It is six wires on a wooden post, with barbs about six inches apart and sharp. Barbs are about one-lialf inch long.” In another place he testified that he put his horse in the field in June, 1889, to pasture. The nature of the lot, whether wild or cultivated, pasture or meadow, does not appear. Whether it had ever been used as a pasture before, or the defendant knew of such use, does not appear. We are not even informed as to how the mare came to be injured.

We do not understand that a barbed wire fence along a railroad track is necessarily dangerous and a nuisance. It may or it may not be, depending upon circumstances. If the lands which it inclosed were wild and uncultivated, and not used for the pasturing of horses it could hardly be claimed that its construction and maintenance was negligence, and yet other circumstances might be disclosed showing that such a fence was an improper one. (Rehler v. Western New York & Pennsylvania R. R. Company, 28 N. Y. St. Repr. 311.)

Under the evidence as w„e find it, it does not appear that such a cause of action was established. It is very evident that the case was not tried upon this theory. The claim litigated was for a breach of contract and it is hardly fair to the appellant upon review to permit the respondent to shift his claim of damages from a breach of contract to one for negligence. The injury complained of occurred before the passage of chapter 367, Laws of 1891, and consequently the prohibition of barbed wire fences in that act has no application to this case.

The judgment of the County Court and that of the justice of the peace sliouid be reversed, with costs to the respondent in this and the County Court.

Dwight, P. J., Lewis and Macomber, JJ., concurred.

Judgment of the County Court and of the justice of the peace appealed from reversed, with costs in this and the County Court.


text:
    The People of the State of New York ex rel. Joshua Bradshaw, Respondent, v. Charles Bidelman, Appellant.

      Application of the Ballot Reform Law — ballots not consecutively numbered — regula/r ballots not invalidated by the casting of yna/rhed, ballots — irregularities at a town meeting election.

    In an action in the nature of quo warranto, "brought to determine the right of the defendant to the office of town excise commissioner, the trial-court found that the ballots cast for the defendant, who received a majority vote, at a town meeting election held in March, 1892, were properly numbered and indorsed, and that a portion of those cast for the relator were not numbered consecutively so as to correspond with the numbers of the town tickets, and the tickets voted for the defendant, but were of a much higher number. The relator, who was in office at the time of the election, claimed that there was no election and that he held over.

      Held, that the facts found by the trial court did not invalidate the election; that assuming that the ballots so deposited with high numbers were- “marked ballots,” they did not operate to render void the ballots that were regular and in accordance with the provisions of the statute.
    Although the Ballot Reform Law /Chap 262, Laws of 1890, amended by chap. 296, Laws of 1891), requires ballots to be numbered consecutively, still when ballots, properly indorsed and otherwise regular in form, except that their stubs are not consecutively numbered, have been voted, and the stubs detached, and the ballots cast into the box and their identity lost, there is no provision which prevents their being counted.
    At the town meeting in question there were two poll clerks appointed; the town clerk was present and kept the poll list until the two poll clerks were appointed; he then left, but was present at different times during the day and was present and assisted at the canvass of the votes, the poll clerks so appointed kept the poll books, one entered the names of the voters and the number of the town ballots as the same were voted, the other kept the names of the voters and the number of the tickets, and the two books so kept corresponded in names and numbers.. During the meeting the officers did not require all the persons voting to return the tickets not voted by them, and a number of such ballots and pasters were left in the booths.

      Held, that while the poll list should have been kept by the town clerk, or in Ms absence by such person as should be chosen by the inspectors present, and the duties of the poll clerks should have been performed by the members of the town board, and the tickets should have been returned to the inspectors, and should have been by them placed in the box kept for such ballots, still the acts above detailed were irregularities merely, not operating to destroy the secrecy of the ballot or affecting the election
    Appeal by the defendant, Cliarles Bidelman, from a judgment of tbe Supreme Court ousting liim from the office of commissioner of excise of the town of Albion, entered in the office of the clerk of Orleans county on the 9th day of December, 1892, upon a decision rendered upon a trial at the Orleans Circuit by the court (trial by jury having been waived) in an action in the nature of quo warranto brought by the Attorney-General in the name of the People.

      I. S. Signor, for the appellant.

      O. J. Ohuroh, for the respondent.
   Haight, J.:

This action was brought to determine the rights of the defendant to hold and exercise the functions of the office of excise commissioner in the town of Albion, Orleans county.

At the town meeting held in that town on the 8th day of March, 1892, there were cast 637 ballots for the relator and 655 for the defendant. The defendant having received the highest number of votes was declared duly elected by the board of inspectors, and thereupon qualified.and entered upon the discharge of the duties of his office.

The trial court found as facts that the ballots cast for the defends ant were properly numbered and indorsed, and that at least 100 of the ballots cast for the relator were not numbered consecutively so as to correspond with the numbers of the town tickets and the tickets voted for the defendant, but were of a much larger number. Does this invalidate the election ?

Assuming that the ballots so deposited with high numbers are “ marked ballots,” we do not understand they operated to render void the ballots that were regular and in accordance with the provisions of the statute. Those cast for the defendant were numbered consecutively from one upwards; they were giv.en out by the inspectors and voted in the order in which they were numbered. True, they could be distinguished from those cast for the relator, bearing the higher numbers; so could ■ every regular ballot be distinguished from the “ marked ballots,” but the regular ballots are those which conform to the provisions of the statute, whilst the “ marked ballots ” are those which, are prohibited. A marked ballot voted with the intent that it shall afterwards be identified is void and of no effect. So says the statute. To hold that the casting of such, a ballot renders void the regular ballots and invalidates the election would leave it within the power of a few evil-disposed persons to nullify our elections and deprive our citizens of their right of suffrage. In this case it has been found that at least 100 ballots of the character described were cast for the relator, but the principle would have been the same had there been but five or six, or even a less number, and it would thus be made easy to nullify any election. In the case of The People ex rel. Nichols v. The Board of Canvassers of Onondaga County (129 N. Y. 395), the county clerk had sent the ballots containing the names of candidates nominated by one of the political parties to an election district other than that for which they were numbered, where they were given out by the inspectors of election and voted by the electors. They could be distinguished from the ballots cast by the electors* of the other political party. It was held that such ballots should not be counted and that the ballots having the proper numbers and district on them should be.

But we do not understand that the ballots cast for the relator can be thrown out. The stubs having the improper numbers upon the ballots were removed when they were deposited in the ballot box, and there is now no way by which they can be identified. The exact number of such ballots cast is not known; the trial court has found there were 100 or more.

The record does not disclose how the ballots for the relator came to be voted in the way stated. It is suggested that they were first given out to the voters in the regular order as the voters called for them, numbered from the unit upwards, and that thereafter, for the space of about an hour, the ballots containing the name of the relator were delivered to the voters bearing much higher numbers. The trial court has found, however, that the board of inspectors acted in good faith and without fraudulent intent. It must be conceded that the ballots deposited by the voters for the relator during the time referred to, containing the high numbers, could readily be distinguished from those deposited for the defendant which contained the low numbers, and to that extent the secrecy of the ballot was destroyed. The statute provides that “No inspector of election shall deposit in a ballot box, or permit any other person to deposit in a ballot box, on election day any ballot which is not properly indorsed and numbered.” And further, “No ballot that has not the printed official indorsement shall be counted, except such as are voted in accordance with the provisions of Section 21 of this Act. All ballots that are £ defective ’ shall be preserved and filed, as provided for in Section 27 of this Act.” (Laws of 1890, chap. 262, §§ 29-31, as amended by Laws of 1891, chap. 296.)

By other provisions of the act the number is required to be printed upon the back of the stub, and the inspectors, after a ballot is returned to them by the voter, are required to remove the stub before placing it in the box. It will thus be seen that after the ballot is placed in the box there is no way to identify it or to determine whether it did or did not have a stub with an improper number upon it. The statute, as we have seen, prohibits the inspectors from depositing a ballot in the box which is not properly numbered. Another provision of the statute makes it a misdemeanor, punishable by a fine and imprisonment, for every officer who violates this statute. But we find no provision which prohibits the counting of such a ballot when once in the box, where its identity is lost.

The indorsement is required to be printed upon the back of the ballot and not upon the stub. The indorsement remains after the stub is removed, and if an improper one, it serves to identify the ballot when taken from the box, hence the provisions that “ no ballot that has not the printed official indorsement shall be counted, etc.” (§ 31.) But this provision has no application to the numbers upon the stub.

It is contended that the statute does not require the ballots to be numbered from one upwards, and that for that reason the ballots cast having the high numbers upon them were regular. True, the statute does not in terms so provide. But it does provide that they shall be consecutively numbered. We think that it was intended that the ballots should be numbered from the unit upwards; that such is a fair and reasonable construction of the statute; but if this were not so,' they are to be numbered consecutively, and this would not permit the commencement of the numbering at the unit and after a few numbers skip to 900, or some other higher number.

There are some irregularities in the proceedings of the town board, acting as inspectors of election, at the town meeting in question. There were two poll clerks appointed; the town clerk was present at the meeting and kept the poll list until the two poll clerks were appointed; he then left, but was present at different times during the day, and was present and assisted at the canvass of the votes. The poll clerks so appointed kept the poll books; one entered the names of the voters and the number of the town ballots as the same were voted; the other kept the names of the voters and the number of the tickets, and the two books so kept corresponded with names and numbers. The poll list should have been kept by the town clerk, or, in his absence, by such person as should be chosen by the -inspectors present, and the duties of the poll clerks should have been performed by members of the town board. During the meeting, the officers did not require all the persons voting to return the tickets not voted by them, and a number of such ballots and pasters were left in the booths. The tickets should have been returned to the inspectors and by them placed in the box kept for such ballots. But these we regard as irregularities merely^ not operating to destroy the secrecy of the ballot or affecting the election. (People v. Cook, 14 Barb. 259 ; affd., 8 N. Y. 67; People ex rel. Noyes v. Board of Canvassers of Chemung County, 126 id. 392.)

The trial court found that the relator was elected commissioner for the town in 1889 for three years, and entered upon the duties of his office and continued to exercise such duties until the town meeting in question ; that the defendant was not elected, and that the relator holds over and is entitled to act as commissioner of excise.

Under the view taken by us the defendant was duly elected commissioner of excise, and it, therefore, becomes unnecessary to consider the question as to whether the relator would hold over in case there was no election.

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

Dwight, P. J., Lewis ánd MAcomber, JJ., concurred.

judgment appealed from reversed and new trial granted, costs to abide the event.


author: Hai&ht, J.:

text:
    In the Matter of the Drainage of Certain Swamp Lands in the Town of Penfield, Monroe County. Adele L. Hulburt, Appellant, Durfee W. Smith and A. B. Titus, Commissioners, and Others, Respondents.

      Drainage commissioners— entertainment of, by one of the petitioners — subpoenaing witnesses — attorney for the petitioners acting as attorney for the commissioners.

    The fact thatwin drainage proceedings, meals of the commissioners, at a hotel, were paid for hy one of the petitioners, during a session held for the hearing of testimony submitted by the petitioners by whom the proceedings were instituted and before, the commissioners had made their adjudication as to the necessity for the drain, is not of itself a sufficient cause for setting aside a report subsequently made by the commissioners that the drain is necessary, and that it must be made through lands of other parties than the petitioners.
    It is not misconduct on the part of drainage commissioners to themselves subpcena witnesses to appear and testify before them.
    It is not a ground for setting aside the report of drainage commissioners that the attorney for the petitioners by whom the proceedings were instituted acted as attorney for the commissioners in reference to the necessary legal steps that they were required by the statute to take, such as the giving of notices, etc., when it is shown that the attorney was not consulted by and did not advise or have any conversation with the commissioners in reference to any question of fact that was to be decided by them,
    Appeal, by Adele L. Hulburt, from an order of the Monroe County Court, entered in tlie office of tlie clerk of that county on tlie 10th day of December, 1892, denying a motion to set aside the majority report of commissioners in drainage proceedings, and to remove them upon the grounds of misconduct, bias and improper relations with the petitioners’ attorneys.

      William G. Jerome, for the appellant.

      Walter 8. Ilubbell, for the respondents.
   Hai&ht, J.:

On the 13th day of July, 1891, a petition was presented to the County Court of Monroe county asking for the drainage of certain swamp, bog, low or wet lands situated in the town of Penfield, in that county. Upon such -petition the court made an order appointing three commissioners to hear and determine, first, whether it is necessary in order to drain such lands that a ditch or ditches or other channel for the free passag» of water should be opened through lands belonging to others than the petitioners; second, whether it is necessary for the public health that such lands should be drained; and, third, to take such other and further steps with reference thereto as are provided by the general drainage law of the State. Thereupon the commissioners so appointed entered upon the discharge of their duties, and after viewing the premises and hearing the parties interested, made their report in which they found that it was necessary in order to drain the lands that a ditch should be opened through the lands belonging to others than the petitioners,, and that it was necessary for the public health that such lands should be drained. One of the commissioners dissented from so much of the report as found that »the drainage was necessary for the public health. The motion is to set aside the majority report and to remove the commissioners who signed it.

It must be conceded that if the charges made in the moving affidavits are true the commissioners were guilty of such misconduct as would require their removal and the setting aside of their report. (In the Matter of N. Y. C. & H. R. R. R. Co., 64 N. Y. 60; In the Matter of Underhill, 32 Hun, 449 ; In the Matter of B., N. Y. & P. R. Co., Id. 289; In the Matter of N. Y., W. S. & B. R. Co., 36 id. 630 ; Clark v. Eldred, 54 id. 5.)

But nearly all of the matters upon which the charges are based are denied in the opposing affidavits, and inasmuch as the County Court has refused to set aside the report we must assume that the judge believed the matters stated in the opposing affidavits rather than those stated in the moving papers. In view of the fact that he is a resident of the county and has an opportunity to know something of the character of the persons verifying the papers, we do not think that we should interfere with the judgment exercised by him in this regard.

There are, however, three questions which require special atten tion. It appears that during the session of the commissioners, in taking testimony submitted, by the parties interested, in the village of Penfield, the commissioners dined at a hotel in that village, and that their meals were paid for by one of the persons who signed the petition upon which the proceedings were instituted. Lewis on Eminent Domain, at section 421, says: “ The mere fact that the commissioners were served with refreshments by one of the parties, or dined or lodged at his house, will not of itself be sufficient cause for setting aside of report. While such bodies should not receive entertainment from interested parties, yet if there is no-improper motive and no abuse of the privilege it will be disregarded.” In Johnson v. Loveless (18 N. Y. Wkly. Dig. 49), it was-held that the dining of jurymen by a party was not necessarily ground for reversal, where it appeared that the trial was before a justice of the peace at a place where there was no public house in the vicinity and the jurors had to get their meals at private houses,, and where the evidence showed that nothing was said to them or in their hearing, and nothing was done in -their presence calculated to influence their decision. But there is another ground upon which we think that the conduct of the commissioners may be justified. The statute under which they were proceeding provides that they shall be paid for their services five dollars for each full day actually employed in their duties; that they shall keep an account of all their expenses and of all the costs and expenses, incurred in draining the lands, including all the costs and expenses incurred in any proceedings under the act and preliminary or incident thereto, all of which shall be a lien upon the property benefited. (Laws of 1886, chap. 636, § 8.)

It will thus be observed that their services and expenses are to be paid out of the land benefited by the drain ; but this can be done only in case they determine that the drain is necessary for the public health. In case they should determine that drainage was not necessary for the public health then they would have no jurisdiction to proceed with the drain or to charge the expenses upon any of the lands. (In the Matter of Byers, 72 N. Y. 1.)

It consequently follows that the persons instituting the proceeds ings become liable for all of the costs and expenses of the commissioners down to the time that the adjudication is made that the drainage is necessary for the public health. In case it is so adjudged then the costs and expenses may be refunded out of the assessments made upon the lands benefited. In case it is not so-adjudged the costs and expenses must be borne by the petitioners. The meals paid for by one of the petitioners was, as we have seen, during the hearing before the commissioners of the parties interested in the proceedings, and before they had made their adjudication as to the necessity of the drain, etc. The commissioners gained nothing by the transaction. Had their meals not been paid for they could have charged the amount up in their expense account, and made the same a lien upon the land. The payment on the part of the petitioner was but an advancement by him of a part of the expenses of the commissioners, which he was liable for in case it should be adjudged that the drainage was unnecessary, and which ' he was entitled to have refunded to him in case it should be adjudged it was necessary.

It appears that one of the commissioners subpoenaed one Michael Jumph to appear before their commission and give his evidence, and paid him his witness fees therefor, and at the same time said that he was going’to see other men with relation to their being sworn in the proceedings. Jumph testified that nothing was said to him as to the ■subject upon which his evidence was called for, or of the side on which his testimony was wanted. It would doubtless have been in better taste had the commissioners intrusted the subpoenaing of witnesses to some other person, but we do not understand that it was misconduct on their part to do it themselves. They were commissioned to make a personal view of the lands, and to make inquiry as to the necessity of their being drained. They unquestionably had the power to compel the attendance of witnesses before them' for the purpose of ascertaining the necessary facts upon which to base their determination. Their duties in this respect are quite different from those of a court or referee trying an issue of fact between parties where only the witnesses are sworn that are produced by the respective parties. The commissioners are éharged with the duty of investigating the facts for themselves, and determining the questions submitted to them.

A charge of misconduct is made upon the ground that the attorneys for the petitioners also served the commissioners as their attorneys. In the minutes of the proceedings kept by the stenographer, it appears that the attorneys for the petitioners appeared as attorneys for the commissioners; and in the summing up of the evidence before the commissioners, it is stated that the attorneys summed up for the commissioners. The opposing affidavits, however, show that this entry was an inadvertence, that the attorneys only appeared for the commissioners as to the necessary legal steps that they were required by the statute to take, such as the giving of notices, etc., and that they in no ease were consulted, or advised, "or had any conversation with the commissioners in reference to any question of fact that was to be decided by them. Under the explanation given by the attorneys, we discover nothing that amounts to misconduct, prejudice or bias. The order appealed from should be affirmed, with ten dollars costs and disbursements.

Dwight, P. J., Lewis and Macomber, JJ., concurred.

Order of Monroe County Court appealed from affirmed, with ten dollars costs and disbursements.


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    Le Roy Riddell, Respondent, v. Peter Cornell, Appellant.

      Possession under a pa/i'ol contract for the sale of land,, and payment, as a defense in ejectment — evidence as to the agreed purchase price.

    In an action of ejectment tried before a referee, in which the defendant claimed a right to the possession of the premises by virtue of a parol contract, sale and payment of the agreed purchase price, the referee found that the parol contract to sell the land to the defendant was made, but that the evidence did' not show what price was agreed upon, and stated that consequently it was not necessary to make a finding as to the state of the accounts between the parties.

      Held, that the evidence did establish the price agreed upon in the parol contract to be paid by the defendant for the premises, and hence that the state of the accounts between the parties was material, as bearing upon the question as to whether the plaintiff had been paid for the land, and should have been determined.
    Appeal by the defendant, Peter Cornell, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of Steuben county on the lYth day of May, 1892, upon the report of a referee.
    The action was in ejectment. The defendant claimed to be entii led to possession by virtue of a parol contract of sale and the payment of the purchase price.

      Eli Soule, for tlie appellant.

      A. M. Bwrrell, for the respondent.
   Haight, J.:

This action is in ejectment to recover the possession of real property from the defendant. The premises in question consist of about five acres of land on which there was a stone quarry. It formerly constituted part of a farm of which one George Riddell held a contract of purchase from the then owners. George Riddell and the plaintiff were copartners, doing business under the name and style of George Riddell & Co. The contract for the purchase of the farm was taken in the name of George for the benefit of the firm and the purchase money therefor was paid by the firm. Subsequently George Riddell assigned his interest in the contract to the plaintiff and thereupon the premises were conveyed to him in accordance with the provisions of the contract. The referee has found as facts, “ That the said George Riddell, while he held said contract of purchase for himself and for said firm and with the approval of the plaintiff, made a parol contract with the defendant, by which he agreed to sell to the defendant and the defendant agreed to purchase the lands described in the complaint, but for what price it does not appear, and is not shown by the evidence given on the trial of this action. Hence I find that the defendant has not paid the sum to be paid by said parol contract of sale to him. That defendant since said parol contract of sale to him was made, and at the time of the commencement of this action was in possession of said premises under the same, and by the consent, license and authority of said George Riddell and this plaintiff.” The defendant requested the referee to find as a fact that George Riddell agreed to sell the land described in the complaint to the defendant, for three hundred dollars.” This request was refused by the referee, and to such refusal and to the finding as made on that subject, exceptions were duly taken. It appears to us that these exceptions were well taken; that the request was in accordance with the conceded facts in the case and should have been found, and that the finding that it does not appear and is not shown by the evidence given upon the trial, what price was to be paid for the land, is against the evidence.

The plaintiff himself testified upon his direct examination that In March, 1874, the defendant came to the drug store and said he wanted to buy the stone quarry, George talked with him and told him he would let him have it for three hundred dollars. Defendant said he did not want a written contract, that he had debts. George told him he would let him have the five acres for three hundred dollars, he to pay interest on it until paid for. Defendant said he would take it. That is the same land described in the complaint.”

The testimony of the plaintiff as to the contract is the same as that alleged in the defendant’s answer with the exception that he alleges that the $300 was to be paid in stone.

The defendant was not permitted to testify as to the conversation had with George Riddell because of his death. He, however, showed by a number of witnesses the declaration of George to the effect that he had sold the defendant the quarry lot, and that he was to receive his pay therefor in stone ; that the payment in stone was part of the agreement has been found by the referee.

The referee in his opinion refers to the testimony so given by the plaintiff and states that “ A contract price nowhere appears except in the testimony of the plaintiff and it there appears as a price to be paid for three acres of the quarry, while the declarations of George Riddell relate to five acres and it was five acres that he reserved as having been sold to the defendant. Then the defendant had the possession and worked the five acres and by direction of George Riddell the five acres were assessed to the defendant and he paid the taxes on the five acres and fenced it. Then the defendant denies that any such conversation as the plaintiff testified to took place.” The referee has mistaken the evidence in this regard. The plaintiff nowhere speaks of three acres, but, instead thereof, he said he would let him have the fl/oe acres for $300, and that it was the same land described in the complaint. The defendant did not deny that any such conversation as testified to by the plaintiff ever took place. They differed, it is true, as to the question whether the $300 was to be paid in stone or not. The plaintiff had testified that the conversation took place at the drug store. The defendant, when asked to state whether he made the bargain “ at the place stated,” answered that no such conversation took place at the store. "We do not understand that he denied that he had a conversation with George in which. George agreed to sell him tne stone-quarry lot consisting of five acres, and that he was to pay therefor $300, for such was the conversation as he has alleged it in his answer.

The referee further states in his opinion that he is unable to see how it could be found from the evidence what was the contract price to be paid by the defendant for the quarry. And consequently it is not necessary for him to make a finding as to the state of the accounts between the parties. Of course, if the amount that was to be paid for the land could not be ascertained, then it would not be necessary to ascertain the state of the accounts, but if, as we have shown, the contract price was $300, then the state of the accounts becomes material as bearing upon the question whether the plaintiff has been paid in full for the land or any part thereof. The question of payment was the main one litigated upon the trial. Much evidence was taken as bearing upon that issue, and it should have been determined.

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

Dwight, P. J., Lewis and Macomber, JJ., concurred.

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


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    Charles E. Stokes, Respondent, v. Henry Weston and Porter Weston, Appellants, Impleaded, etc.

      Devise overr, in ease of the death of a prior devisee without issue — • time of happening of the contingency, with refm'ence to the testator's death.

    The rule that where there is a devise to one person absolutely, and in case of his. death to another, the words of contingency refer to a death in the lifetime of the testator, has no application when a prior devisee takes a life estate; and where there are words in the context indicating an intention on the part of the testator that the death of the devisee should refer to some other time than that of the testator’s death, effect must be given to such intention.
    A. will, after devising the use of all the testator’s property to. his wife for her life, continued as’ follows: “ X give, bequeath and devise to my children Alfred Stokes, Charles E. Stokes and Clara McGee the rest, residue and remainder of’ my property in equal proportions; but in case of the death of my sons Alfred and Charles E., or either of them, without issue living at the time of his decease, then the share of the one so dying without issue shall be divided equally between my grandchildren Henry Weston and Porter Weston.” The sons Alfred and Charles E, survived the testator.

      Held, that the devise over to the grandchildren was contingent upon the death of the sons Alfred and Charles E., or either of them, without issue, at any time, and that the contingency was not limited to a death before the death of the testator.
    Appeal by tlie defendants, Henry Weston and Porter Weston, by their guardian ad litem, from an interlocutory judgment of the Supreme Court, entered in the office of the clerk of Cayuga county on the 16th day of March, 1893, upon a decision of the court rendered after a trial at the Cayuga Special Term.

      Coburn c& Hunter, for the appellants.

      Teller <& Hunt, for the respondent.
   Haight, J.:

This action was brought to partition real estate. The only question presented upon this appeal is as to the proper construction of the will of Samuel Stokes.

Samuel Stokes died on the 24th day of October,' 1889, possessed of real and personal estate. He left him surviving his widow, Eliza Stokes, the plaintiff, Alfred Stokes and Clara McGee, his children, and' Henry Weston and Porter Weston, his grandchildren, and the children of Clara McGee. He left a last will and testament which has been duly proved and admitted to probate, in which he first devised and bequeathed to his wife Eliza the use of all of his property for and during the term of her natural life. Second: “ I give, bequeath and devise to my children Alfred Stokes, Charles E. Stokes and Clara McGee, the rest, residue and remainder of my property in equal proportions; but in case of the death of my sons Alfred and Charles E. or either of them, without issue living at the time of his decease, then the share of the one so dying without issue shall be divided equally between my grandchildren Henry Weston and Porter Weston.” The trial court has construed this provision of the will to the effect that the death of the sons without issue meant their death during the life of the testator, and that inasmuch as they had both survived him they each became vested with one-third of the estate, subject only to the life estate of their mother. The court, in its opinion, states that “there is nothing ambiguous about this clause, its meaning and the intention of the • testator are clearly expressed, and such intention to my mind was that his two sons should take an equal one-third share of his estate absolutely, jirovided they did leave issue, but in the contingency that either should die without issue living at the time of his death, whether that contingency arose before or after the death of the testator, then his share should go to the grandchildren, and the embarrassment which I labor under arises from the fact that I am unable to give effect to the language of the will according to its natural import without doing violence to well-settled rules of construction.” "We fully agree with the views expressed by the learned trial judge as to the meaning and intention of the testator, but we differ with him in what he considers to be well-settled rules of construction.”

“ But in case of the death of my sons Alfred and Charles E., or either of them, without issue living at the time of his decease, then the share of the one so dying without issue shall be divided equally between my grandchildren,” etc. The pronoun his ” preceding the word decease must refer to the noun or nouns that precede it. In other words “ his ” refers to the nouns Alfred and Charles, and the meaning is the same as if the words Alfred and Charles were substituted in place of the pronoun. This is the fair grammatical construction of the sentence. It is contended, however, that under the authorities the pronoun his refers to the testator, and that the time mentioned is that of the testator’s death instead of that of the sons, or either of them. Our reading of the cases does not sustain this construction. It is unquestionably a well-settled rule of construction that where there is a devise to one person absolutely, and in case of his death to another, the words of contingency refer to a death in the lifetime of the testator. (Clayton v. Lowe, 5 Barn. & Ald. 636 ; Doe v. Sparrow, 13 East, 359 ; Woodburne v. Woodburne, 23 L. J. Ch. 336 ; Gee v. Mayor, etc., 17 Adol. & Ell. [N. S.] 737; Livingston v. Greene, 52 N. Y. 118 ; Embury v. Sheldon, 68 id. 227; Quackenbos v. Kingsland, 102 id. 128.)

But this rule has no application when the first devisee takes a life estate, and it is equally well settled that where there are words in the context indicating an intention on the part of the testator that the death of the devisee refers to some other time than that of the testator’s death effect must be given to such intention. (Buel v. Southwick, 70 N. Y. 581; Nellis v. Nellis, 99 id. 505 ; Vanderzee v. Slingerland, 103 id. 47 ; In the Matter of N. Y., L. & W. R. Co., 105 id. 89, Fowler v. Ingersoll, 127 id. 472; Mead v. Maben, 14 N. Y. Supp 732. See dissenting opinion of Learned, P. J., page 737, S. C. reversed, 131 N. Y. 255, in which the dissenting opinion in the court below was approved. Nelson v. Russell, 135 N. Y. 137; In the Matter of the Judicial Settlement of the Accounts of Denton, 51 N. Y. St. Repr. 60; Washbon v. Cope, 22 N. Y. Supp. 241; Mullarky v. Sullivan, 49 N. Y. St. Repr. 333-335.)

In Mullarky v. Sullivan (supra), O’Brien, J., in speaking of the death within the lifetime of the testator, says: “ It is only in the case of an absolute devise or bequest to one and in case of his death to another, that the words are given such a meaning, and the rule has no application to a case where the first devisee or legatee takes a life estate.”

In Fowler v. Ingersoll (supra), Brown, J., says : “ The words of contingency are substitutionary merely and are intended to prevent a lapse in case the first devisee is not living at the death of the testator, and do not create an executory devise or remainder over upon the death at any time of the first taker. But this rule has no application when the first devisee or legatee takes a life estate, and is applied only when the prior gift is absolute and unrestricted. The reason assigned for the rule is that as death is the certain event and time only is contingent, the words ol contingency can only be satisfied bv referring them to a death before some particular period, and none being mentioned the time referred to must be presumed to be the testator’s own death. But this reason fails in the case of a life estate, as in such case the presumption would be that the words of contingency referred to the event which would determine the life estate.”

As we have seen the will devised and bequeathed to the wife Eliza, the use of all of the testator’s property for and during the term of her natural life. A life estate was thus created. It was the remainder only that was devised to the children; thus bringing the case within the rule stated in the case above referred to.

Again, the will under consideration contains the phrase: “At the time of his decease,” which, used in the connection in which it appears, indicates that the time referred to and intended by the testator was that of the death of his sons Alfred and Charles, or either of them. A careful examination of the authorities fails to show a case in which the testator has so clearly expressed his intention, where it has not been recognized and carried out.

Note. The rest of the cases of this term will he found in the next volume (70) Hun— [Rep.

The decision of this court in the case of Matter of Tallmage, Executor, etc. (partially reported in 20 New York Weekly Digest, 69) is not 'in conflict with the views herein expressed. In that case the testator had given an estate to his daughters, Elsie and Jane. He then provided that In case of the decease of both of my said daughters Elsie and Jane and without any children of theirs then surviving, then and in such case I give and bequeath their said shares of said property aforesaid to my sister Jane M. Tallmage, but in case of the decease of either of my said daughters and without children, then and in such case the survivor of either of them shall have and hold and be the owner of the whole of my said property.” Here was a provision that in the case of the death of either daughter the survivor should take absolutely the whole estate. The sister, Jane M. Tallmadge, could not take unless the death of the daughters should occur simultaneously or unless the death of the daughters referred to a time preceding that of the testator. It was under these circumstances that we held that the death of the daughters mentioned in the will referred to a time preceding the death of the testator.

Upon the trial the plaintiff stated in open court that he did not desire a partition of the property unless he obtained a construction of the testator’s will in conformity with the allegations and prayer of his complaint. Our views are adverse to his contention.

The judgment should, therefore, be reversed and the plaintiff’s complaint dismissed, with costs.

Dwight, P. J., Lewis and Macomber, JJ., concurred.

Interlocutory judgment appealed from reversed, and the plaintiff’s complaint dismissed, with costs.


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    George Alden, as Receiver, etc., Appellant, v. Edward K. Clark and John Le Grange. Respondents.
   Order on each appeal amended by adding a provision that the respondent, within twenty days after the entry and service of this order and upon payment of the costs awarded against him, may amend his answer. Balance of motion denied.


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    Henry M. Warren and Others, Respondents, v. Hector B. Johnson and Others, Appellants.
   Order affirmed, with ten dollars costs and disbursements.


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    The People of the State of New York ex rel. Abijah Wakeman, Appellant, v. Rector Seymour, as Sole Trustee, etc., Respondent.—
   Order affirmed, without costs.


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    Gates Thalheimer, Respondent, v. Frank Gillett, Appellant.
   Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs to abide the event.


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    Frank R Jenks, Appellant, v. Thomas Quinn, Respondent.
   Order affirmed, with ten dollars costs and disbursements.


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    The People of the State of New York, Respondent, v. Thomas Ryan, Appellant.
   Convicti m, judgment and order reversed and a new trial ordered, and the clerk directed to enter judgment and remit a certified copy thereof, with the return and decision of this court, to the Court of Sessions of Oswego county, pursuant to sections 547 and 548 of the Code of Criminal Procedure. Held, that cross-examination of the People’s witnesses was improperly limited, and as the evidence of intent to ravish was so slight, the rulings were prejudicial to the defendant.


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    Henry H. Stevens, Respondent, v. Henry H. Dean, Appellant.
   Judgment and order affirmed, with costs.


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    Seymour Seeley, Respondent, v George J. Dixon and Another, Appellants.
   Judgment and order affirmed, with costs.


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    Charles J. Thompson and Others, Respondents, v. Phonora A. Ryder. Appellant, Impleaded, etc.
   Order reversed and motion granted setting aside the judgment so far as it awards costs against the appellant.


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    John Savell, Respondent, v. James Gasler, Appellant.
   Judgment and order reversed on the exceptions and a new trial ordered, with costs to abide the event. Held, that at the time of the seizure the plaintiff had not the right to reduce the property into his possession, and, therefore, replevin is not maintainable (Code, § 1690, subd. 3; Savell v. Waful, 21 N. Y. Civ. Pro. Rep. 18; S. C., 63 Hun, 627.)


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    William H. Gardner, Appellant, v. Patrick O’Donnell, Respondent.
   Order affirmed, with costs.


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    Elizabeth B. Alsop, Respondent, v. Charles R. Alsop, Appellant.
   judgment and order affirmed, with costs


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    Charles McCarthy, Plaintiff, v Thousand Island Park Association, Defendant.
   Judgment or lered for plaintiff for the amount demanded, without costs to either party Held, that under plaintiff's lease the entrance fee was not legally chargeable against him


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    John W. Truesdell. as Administrator, etc., Respondent, v Hannie L. Bourke, as Executrix, Appellant.
   Judgment reversed on the exceptions and a new trial ordered, with costs to abide the event. Held, that the case involved questions of fact which ought to have been submitted to the jury.


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    Louis House, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.
   Judgment affirmed, with costs.


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    The People of the State of New York, Respondent, v. M. Jesse Brayton, Appellant.
   — Interlocutory order and judgment overruling demurrer affirmed, with costs, with leave to the defendant to answer in twenty days upon payment of the costs of the demurrer and of this appeal.


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    Ben. L. Fairchild, Judgment Creditor, Respondent, v. Alonzo B. Cornell, Appellant.
   Order affirmed, with ten dollars costs and disbursements. Held, that the prior proceedings for appointment of receiver furnish no reason why the debtor should not be examined as to his property.


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    Richard C. Wilson, Respondent, v. The Schenevus Village Water Works Company, Appellant.
   Judgment affirmed, with costs.


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    Bridget O’Hara and Others, Executors, etc., Appellants, v. Dutchess County Mutual Insurance Company. Respondent.
   Order reversed, with ten dollars costs and disbursements. Held, that the issues are not referable. (See 2 Thompson & Cook, 550; 11 Hun, 511; 12 N. Y. St. Repr. 620; 9 Hun, 28; 10 N. Y. Supp. 229; 88 N. Y. St. Repr. 520; S. C., 8 id. 1.


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    Cleveland D. Manville, Appellant, v. Henry McCullock and Horace Bush, as Executors and Trustees, Respondents.
   Order affirmed, with

ten dollars costs and disbursements.


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    In the Matter of the Petition of Hannah Stephens, Appellant, v. John D. Griffith, as Attorney, etc., Respondent.
   Order affirmed, without costs. Held, that the question as to the default of the respondent was addressed to the discretion of the Special Term.


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    Simon D. Paddock, Appellant, v. John Bacon and Others, Respondents.
   Judgment affirmed, with costs. Parker, J., not sitting.


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    John J. Wood, Appellant, v. The Town of Volney, Respondent.
   Order affirmed, with costs.


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    Peter Manswey, Appellant, v. Henry C. Grunert, Respondent.
   Judgment of the County Court reversed, and the judgment of the Justice’s Court affirmed, with costs.


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    Anna Murray, Appellant, v The Church of St. John the Evangelist, Respondent.
   Judgment affirmed, with costs.


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    Ellen C. Beardslee and Guy R. Beardslee, Appellants, v. Henry A. Dolge, Respondent.
   Judgment affirmed, with costs Hardin, P. J., not voting (Followed opinion of Martin, J., on former appeal.)


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    Albert Johnson and Others, Respondents, v. Robert W Bruce and Others, Appellants.
   Order affirmed, with ten dollars costs and disbursements, and a provision added to it that upon the defendants’ paying nine dollars and thirty-five cents balance of judgment, with interest, within twenty days, to plaintiffs’ attorney, he shall execute and deliver a satisfaction piece of the judgment.