text:
    George Harley, Respondent, v. Edward Fitzgerald, Appellant.

      Bight to open and dose a ease in a Justices Court — proof of the claim in that court — when a defendant has the affirmative of the issues.

    The right of a party to an action to open and close the case is a substantial right, and a failure to grant it in a proper case is a fatal error.
    As by the provisions of section 2868 of the Code of Civil Procedure, a justice of the peace must hear, try and determine actions before him according to law, such principle is applicable to actions tried in Justices’ Courts.
    The provision of section 2891 of the Code of Civil Procedure, to the effect that, if the defendant fails to appear and answer, the plaintiff cannot recover without proving his case, does not apply where the .defendant does appear and . answer.
    The plaintiff in an action brought before a justice of the peace made oral complaint for a certain sum, with interest from a specified date; the defendant by answer admitted the principal indebtedness, but made no allegation as to the interest, and set forth two counterclaims.

      Held, that the defendant had the affirmative of the issue, and was entitled to open and <;lose the case.
    Appeal by tlie defendant, Edward Fitzgerald, from a judgment of the County Court of Oraug'e county in favor of tlie plaintiff, entered in the office of the clerk of the county of Orange on the 1st day of November, 1894, upon the decision of the court affirming a judgment of a justice of the peace of the city of Newburgh, Orange county, with notice of an intention to bring up for review upon such appeal the said judgment of the Justice’s Court and the refusal of the justice to allow the defendant the affirmative of the issue and the right to open and close the case.

      A. II. F. Seeger} for the appellant.

      William D. Dickey, for the respondent.
   Cullen, J.:

This is an appeal from a judgment of tlie County Court affirming a judgment recovered in the court of a justice of the peace.

There is but one point urged on this appeal, that on the trial before the justice and jury the defendant was denied the right to open and close the case. That this right is substantial and that a failure to grant it in a proper case is fatal error is settled by authority. (Murray v. N. Y. Life Ins. Co., 85 N. Y. 236 ; Millerd v. Thorn, 56 id. 402.)

I3y section 2868 of the Code the justice must hear, try and determine actions before him according to law. So the principles cited must apply in such cases. (3 Wait’s Law & Prac. 470, 724.) The plaintiff made oral complaint for forty-five dollars, with interest from September 1, 1893, for wages. The defendant filed a written answer pleading a general denial and a counterclaim. When the case came on for trial he filed an amended answer denying nothing, but admitting the indebtedness of forty-five dollars without any allegation as to the interest. The answer then set forth two counterclaims. On this answer it is plain that the defendant had the affirmative. True, the answer did not admit interest, but an admission was not necessary as the failure to deny the allegation of the complaint operated as an admission. Nor was it necessary for the plaintiff to prove his case. Section 2891 of the Code provides that if the defendant ■ fails to appear and answer the plaintiff cannot recover without proving his case. Put this does not apply where the defendant does appear and answer. (Gregory v. Trainor, 4 E. D. Smith, 58.) Nor is it material whether the second defense pleaded be considered a counterclaim or a set-off. In either case the burden of proof to establish it was on the defendant.

The judgment of the County Court and of the justice should be reversed, with costs.

Pratt and Dykman, JJ., concurred.

Judgment of the County Court and the court of the justice of the peace reversed, with costs.


source: Caselaw Access Project

author: Pratt, J.:

license: Public Domain

text:
    John Jager, Appellant, v. The Coney Island and Brooklyn Railroad Company, Respondent.

      Damages for personal injuries — ■contributory negligence — duty of motormum, on electric- car.

    Upon the trial of an action brought to recover damages arising from personal injuries resulting from the defendant’s alleged negligence, it was shown that the plaintiff saw the electric car on a street surface railway by which ho was injured, approaching for a long distance, and had ample time to get out of its way, and that if he had stood where he was when he saw the car coming he would not have been injured, but that when the car came near he jumped in front of it.

      Held, that no inference of negligence on the part of the railway company could be indulged in on account oí the failure of its motorman to stop the car; that under such circumstances there existed no necessity for signals, even were the same ordinarily required.
    Appeal by tlie plaintiff, John Jager, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 6th day of April, 1894, upon the dismissal of the complaint directed by tlie court after a trial before tlie court and a jury at the Kings County Circuit.

      Stephen B. Jacobs, for tlie appellant.

      JJ. W. Slocum, for tlie respondent.
   Pratt, J.:

Tliis is an appeal from a judgment entered at the Circuit in a negligence ease. Tlie plaintiff was injured on defendant’s railroad track about 150 feet south of wliat is called Manhattan crossing by a car going from Brooklyn to Coney Island.

The negligence it was claimed which caused the injury consisted (1) in a high rate of speed on a public highway ; (2) the absence of signals, and (3) the absence of tlie motorman from bis post of duty. There w-as no difficulty in seeing both ways upon the track a long distance; in fact, tlie plaintiff did see the car approaching for a long distance and in ample time to get out of its way, and if lie bad stood still where lie was when he saw the car coming he would not have been injured, but be says when the car got near him he jumped in front of the car

This testimony precluded any inference of negligence in not stopping the car, or in the motorman not being at his post; in fact, the proof was that the motorman was at his post all the time, and a second or two before the accident he had turned on the power to increase the speed.

The plaintiff was traveling in a direction to meet the car, and had seen it, in plain view, coming towards him for a long distance; indeed, he saw it so far ahead of him that he took it for a man with a lantern, which does away with all necessity for signals, were the same required.

The criticism that the motorman was seen before the accident leaning with his back against the door is not only puerile, but it is false if it refers to the moment before the accident.

It is apparent from the facts in evidence, putting the most favorable construction on them for the plaintiff, that no negligence whatever was shown on the part of the defendant, but that the sole cause of the accident was want of care on the part of the plaintiff.

The judgment should be affirmed, with costs.

Dykman and Cullen, JJ., concurred.

Judgment affirmed, with costs.


text:
    George Miller, Respondent, v. John King and Another, as Receivers, etc., of The New York, Lake Erie and Western Railroad Company, Appellants.

      Amendment of complaint upon the trial — declarations of a ticket agent binding •upon the railo'oad company — what is ejectment from a, car — breach of the contract ecidemced by the, ticket — ground ofrecocery of damages.

    him fact tliat tlie plaintiff in an action was permitted to amend liis complaint upon the trial thereof is not an error, where the cause of action was not changed and the defendant was not surprised or prejudiced thereby.
    Upon the trial of an action brought against a railroad company, the declarations of its ticket agent while selling tickets, if relevant, are not only competent evidence, but are binding upon the railroad company; they form a part of the contract made between the railroad company and the purchaser of a ticket, since the agent is presumed to be clothed with all the power necessary to perform the functions of his office.
    In order that a person may recover damages for being ejected from a railroad car, it is not essential that he should be violently assaulted; a conductor, having charge of the car and the means at hand of ejecting him, by stopping the car and ordering him to get off, ejects him in the eye of the law.
    "Where a railroad ticket to a certain station is sold to a person by a ticket agent of the railway, who informs the person that the train stops at that station, the failure of the railway company to carry the purchaser as far as such station is a breach of the contract of which the ticket is evidence.
    Where a person is wrongfully ejected from a railway car, he is entitled to recover from the railroad company damages for the indignity and humiliation which he has suffered thereby.
    Appeal by tlie defendants, John King and another, as receivers, etc., of the New York, Lake Erie and Western Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 20th day of September, 1894, upon the verdict of a jury rendered after a trial at the Orange Circuit, and also from an order made on the 18th day of June, 1894, and entered in said clerk’s office denying the defendants’ motion for a new trial made upon the minutes.
    IF. A. Parslmll and Lewis M Oarr, for the appellants.

      John IF. Lyon, for the respondent.
   Pratt, J.:

This is an appeal from a judgment entered upon a verdict and from an order denying a motion for a new trial. The suit was brought for an unlawful ejection of the plaintiff from a car of the defendants, the plaintiff being a passenger.

The first objection made by the defendants is that plaintiff was permitted to amend his complaint upon the trial. This was not error as the cause of action was not changed and the defendant was not surprised or prejudiced thereby.

Prior to purchasing a ticket the plaintiff had been told by the ticket agent that the train stopped at a place upon the line called Sparrowbush, where he desired to get off, and he accordingly bought a ticket for that place and took his seat in the car, where, soon after the train started, the conductor came and examined and punched the ticket and returned it to him and gave him no notice that the train did not stop at the point of destination expressed upon the ticket. Before arriving, however, at this point the train stopped at a terminal (Port Jervis) of the divisions of defendants’ line, where a change of conductors took place. The train proceeded, and soon after it started the new conductor came in the car and took up plaintiff’s ticket and informed him the train did not stop at said Sparrowbush and that he must get off the train at once.

¥e think that the declarations of the ticket agent were not only competent evidence, having been made in the line of his duty, but that the defendants are bound by them. (Nelson v. Long Island R. R. Co., 7 Hun, 140 ; Curtis v. Avon, Geneseo, etc., R. R., 49 Barb. 148.)

The declarations of the ticket agent formed a part of the contract. He was there to sell tickets and give information, and he must be presumed to be clothed with all the power necessary to perform the functions of his office.

As to the ejection of the plaintiff from the car, it was not essential he should have been violently assaulted ' to warrant a recovery. The conductor had charge of the car and had the physical means at hand to eject him, and stopping tlie train .and ordering him to get off was an ejection in the eye of the law.

~Wq see no answer to tlie claim that there was a plain breach of contract of which the ticket was evidence. The defendants did not carry him as far as Sparrowbush, but without any excuse whatever put him off the car while his contract was not completed. It would have taken no longer to stop the train at Sparrowbush than it did when plaintiff was ejected.

No rule was offered in evidence to show that when a person holds a ticket to a place where a train does not stop he can be jmt off at discretion at any point before arrival at the point of destination.

Under all the circumstances the conductor had no right to eject the plaintiff, and his action in doing so was unlawful (Elliott v. N. Y. C. & H. R. R. R. Co., 53 Hun, 78; Martin v. Same, 1 N. Y. St. Repr. 738 ; Hayes v. Same, 20 Wkly. Dig. 237), and the plaintiff is entitled to damages for the indignity and humiliation suffered thereby. (Sedg. on Dam. [8th ed.] § 865 ; Hamilton v. Third Ave. R. R., 53 N. Y. 25.) '

After a careful examination of the record wo find no exception pointing to error sufficient to warrant us in disturbing the judgment.

Tlie damages are not excessive. The judgment must be affirmed, with costs.

Brown, P. <1., and Dykman, J., concurred.

Judgment and order denying motion for new trial affirmed, with costs.


author: Brown, P. .J.:

text:
    Edward Laufer, Respondent, v. The Boynton Furnage Company, Appellant.

      An amendment of a complaint to conform to the proof is discretionary — not disturbed upon appeal — damages to a stock of plants — evidence upon the question of damage.

    It is a matter resting in the sound discretion of the trial court to allow an amendment of the complaint in an action in order to conform it to the proof, and the exercise of such discretion will not be interfered with upon appeal, where such amendment does not change the cause of action or demand from the defendant any other defense than has been pleaded or there has been proof to sustain, and where its solo result is to permit the plaintiff to recover such a verdict as the evidence has established.
    Where one of the items of damage sought to be recovered by the plaintiff in an action is the value of his stock in a greenhouse, which was injured or destroyed hy reason ol' an alleged defect in a heating apparatus furnished by the defendant, the plaintiff, for the purpose of showing the value of the plants, may testifj’ as to the average number of flowers cut from the plants the year previous, where he testifies that he has had thirteen years’ experience in cultivating plants hy artificial heat in the winter months, and knows how many flowers he can produce from a plant.
    Appeal by the defendant, Tlie Boynton Furnace Company, from a judgment of the Supreme Court in favor of tlie plaintiff, entered in tlie office of the clerk of tlie county of Queens on tlie 8tb day of May, 1894, upon the verdict of a jury rendered after a trial at the Queens Comity Circuit, and also from an order entered in said clerk’s office on tlie loth day of May, 1894, denying tlie defendant’s motion for a new trial made upon tlie minutes.

      M. JL Oardozo, for tbe appellant.

      Edward L. Frost, for the respondent.
   Brown, P. .J.:

The plaintiff was a florist, and in January, 1892, entered into a contract with the defendant, whereby it agreed to furnish to him and set up in his greenhouses a hot water heater with pipes according to certain specifications, and gave to him a written guaranty that the boiler and radiators mentioned 'in the specifications would “ heat greenhouses to the desired temperature for the term of fifteen years,” jnovided they were kept in good workable condition.

This action was brought to recover damages arising from a breach of the guaranty.

Two causes of action were alleged in the complaint. In the first a recovery was sought for damages to plants and loss of sales of cut flowers which the plants would have produced if a proper temperature had been maintained in the greenhouses, and in the second for the difference between the value of the heater as it was and as it would have been had the guaranty been fulfilled.

There was a conflict of testimony as to what the guaranty was in reference to temperature.

The plaintiff claimed that it was to be as high as seventy-five to eighty-five degrees in one of the houses so as to permit the growth of delicate varieties of flowers, while defendant claimed that the desired temperature agreed upon was to be sufficient only for growing carnations and chrysanthemums and that fifty degrees was sufficient for such purpose.

There was no exception taken to the charge of the court, and there was no motion made to dismiss the complaint.

The only motion made was to dismiss the first cause of action upon the ground that there was not sufficient evidence to go to the jury as to what the plaintiff’s actual damages were.

We are of the opinion that this motion was properly denied, and we find no reason for disturbing the verdict of the jury upon the facts.

The court charged the jury that if the plaintiff was entitled to succeed he had a right to recover, first, the difference in value between the heating apparatus he was entitled to receive under his contract and the heating apparatus ho actually did receive, and, second, the difference between the value of the stock in his place which was injured or destroyed by reason of any defect in that apparatus before it was injured and the value of that stock after it had received such injury.

For the purpose of showing the value of the plants the plaintiff and his wife were permitted to testify, against the defendant’s objection and exception, to the average number of flowers cut from the plants tlie year previous. We are of tlie opinion tliat this evidence was competent.

In the case of Swain v. Schieffelin (134 N. Y. 471) the plaintiff was permitted to recover for the loss of customers and sales and profits thereon, and proof of sales in a corresponding period of a prior year was permitted.

In White v. Miller (71 N. Y. 118) the court says : The character of the season, * * * the manner in which the plants set were cultivated; the condition of the ground; the results observed in the sanie vicinity * * * and other circumstances may be shown to aid the jury, and from which they can ascertain approximately the extent of the damages resulting from the loss of a crop of a particular kind.” In Wakeman v. Wheeler & Wilson Manufacturing Co. (101 N. Y. 200) it was said: “If there is no more certain method of arriving at the amount, the injured party is entitled to submit to the jury the particular facts which have transpired, and to show the whole situation which is the foundation of the claim and expectation of profits, so far as any detail offered has a legal tendency to support such claim.”

The plaintiff testified that ho had thirteen years’ experience in growing flowers by artificial heat in the winter months, and that he knew how many flowers he could grow from a plant. It was entirely permissible for him to state his experience, and the average number of flowers that he had cut from the various plants in the prior year. While the result, based upon such evidence, is somewhat speculative, it is no more so in reference to flowers than the prospective result from seeds and other crops, and is a most material fact to be considered in determining the value of the plants. It was a fact proper in this case for the jury to be informed of, and to consider in determining the amount of the loss that plaintiff had sustained.

The amendment allowed to be made to the complaint to conform that pleading to the proof was one clearly within the power of the court. It did not change the cause of action or demand from the defendant any other defense than it had pleaded and given proof to sustain. Its sole result was to permit the plaintiff to recover such a verdict as the evidence had established. It was a matter that rested in the sound discretion of the trial court, and we find no reason to disagree with its judgment.

We have examined the other exceptions and find none that require notice.

The judgment must be affirmed, with costs.

Pratt and Dykman, JJ'., concurred.

Judgment and order denying motion for new trial affirmed, ■with costs.


author: Brown, P. J.:

text:
    William D. Strong and Another, Respondents, v. Julia D. Harris and Others, Appellants, Impleaded with Others.

      An agreement that heirs at km of a testator should share equally in his estate conveys no title■ — jurisdiction of Surrogates’ Courts over personal property — action for an accounting against executors not maintainable in courts of equity — partition of the real a/rul personal property of a testator — specific performance of a contract not decreed therein —condition as to a contest over the 'will.

    Where a testator by his will devises all his estate, real and personal, after making certain specific bequests, to certain of his children, an agreement made between the. children of the deceased to share his estate equally is, in respect to the land, a mere executory contract. It conveys no title and does not constitute the signers joint tenants or tenants in common of the land of which their father died seized. •
    The custody and possession of the personal estate of a testator is given by law 1o his executors, and the jurisdiction to direct and control their conduct and settle their accounts is conferred upon the Surrogates’ Courts. A court of equity will not interfere in such cases nor can an action in equity, which seeks no other relief than a distribution of a testator’s personal estate among- those entitled thereto, be maintained unless there is some question in regard to the construction or validity of the provisions of the will or some question as to the enforcement of a trust. When complete relief can be obtained in the Surrogate’s Court, courts of equity will decline to entertain an action for an accounting or other relief against executors.
    While an action can be maintained for the partition of the specific personal property owned in common by two or more parlies, or for the sale of a chattel and a distribution of the proceeds, an action is not maintainable in equity which would remove from the custody of the executors of a testator the whole of his estate and distribute it among the beneficiaries named in the testator’s will.
    In an action brought to partition the real and personal property of a testator, between his heirs at law and next of kin, who have made a contract that they shall share equally in the estate of the testator, the plaintiffs are not entitled to judgment directing a specific performance of the contract where no relief of that kind is asked for in the complaint.
    Where it was a condition precedent to the liability of a testator’s daughters under a contract that there should be no contest in regard to his will, it must be alleged and proved, in an action brought to obtain a specific performance of such contract, that there was no such contest, and without such an allegation the complaint in such action fails to state a cause of action.
    Appeal by the defendants, Julia I). Harris and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the cleric of the county of Kings on the 27th day of November, 1894, upon the decision of the court rendered at the Kings County Special Term overruling the demurrers to the amended complaint.
    The parties to this action are the children of Demás Strong, deceased, and the wives of the sons of said deceased.
    The material allegations of the complaint are that Demas Strong died in November, 1893, leaving a will, which was admitted to probate in January, 1894, by which, after the bequest of certain legacies, he left all his property, real and personal, to his five daughters. That some of the children were dissatisfied with the provisions of the will, and that in consideration that they would not enter into a contest thereof, the said children, with the exception of Jennie McMahan, entered into an agreement to share equally in the division of the estate, both real and personal, with certain provisos not material on this appeal. That the parties to such agreement, excepting the plaintiffs, refused to abide by it or carry it out.
    The respective interests of each party in aiid to said estate as they would be if said agreement had been executed are set' out in the complaint, and attached to 'it is a schedule alleged to contain a description of all the real estate within this State of which said Demás Strong died seized. The personal property was alleged to be of the value of $200,000, and the real estate of the value of $100,000.
    The prayer of the complaint was as follows :

      “ "Wherefore, the plaintiffs pray that partition and division of said property and estate may be made by and under the direction of this court, according to the statutes and laws in such cases made, provided and existing; that commissioners may be appointed by the court for the purpose of making sucli partition, or in case a partition ■of said premises or of any part thereof cannot be made without great prejudice to the owners thereof, then the said premises or such part thereof as cannot be divided may be sold by and under the direction •of this court, and that the proceeds of the sale, after paying’ the costs and expenses of this suit, may be divided among the owners thereof according to their respective rights and interests therein, and that .the plaintiffs may have their costs of this suit and such other and further relief as may be just.”
    The demurrers alleged that causes of action were improperly joined, and that the complaint did not state facts sufficient to constitute a cause of action.
    Jennie McMahan, who did not sign the agreement set forth in the complaint, demurred separately.
    Julia I). Harris and Clarissa B. Goodnow, as executors of the will of Demas Strong, deceased, demurred jointly, and said two defendants individually demurred jointly with their sister Susan Strong.

      Joseph A. Burr, for the appellants.

      Horace Graves, for the respondents.
   Brown, P. J.:

The complaint in this action does not state a cause of action for partition of real estate. The plaintiffs derive no title to the land under the will of their father; neither have they any under the agreement with the heirs. The latter instrument is, in respect at least to the land, a mere executory contract to the effect that all who executed it shall share equally therein. It conveys no title, and does not constitute the signers joint tenants or tenants in common in the land of which their father died seized.

I know of no precedent for an'action in equity which seeks no other relief than a distribution of a testator’s personal estate among those entitled thereto.

The law gives the custody and possession of the personal estate to the executors, and jurisdiction to direct and control their conduct and settle their accounts is conferred upon the Surrogates’ Courts, and a court of equity does not interfere in such cases, except when there is some question of the construction or validity of the provisions of a will or some question of the enforcement of a trust. When complete relief can be obtained in the Surrogate’s Court, a court of equity will decline to entertain an action for an accounting or other relief against executors. ( Wager v. Wager, 89 N. Y. 161.)

Assuming, for the purposes of this appeal, that the agreement between the heirs, so far as the personal estate was concerned, executed itself and is to be construed as an assignment to the plaintiffs of an interest in the estate, no facts are stated in the complaint which create an equitable cause of action against the executors for an accounting, and no reason is apparent why the plaintiffs cannot obtain all the relief to which they are entitled in the Surrogate’s-Court'.

The complaint contains no allegation against the executors of any kind, nor is any judgment demanded against them. The prayer for relief ignores them entirely, and a judgment is sought by which the estate is to be divided- by commissioners appointed by the court, or sold, and the proceeds distributed under its direction.

While an action can be-maintained for a partition of specific personal property, owned in common by two or more parties, or for the sale of a chattel and the distribution of the proceeds, a cause of action, such as is set out in the complaint, which would remove from the custody of executors the whole estate of a testator and distribute it among the beneficiaries, is unknown to the law.

The Special Term, however, decided that the complaint set forth a cause of action for a specific performance of the agreement to-divide the estate.

With such a cause of action neither Mrs. McMahan or the-executrices have any concern. They are not parties to the agreement nor interested in the result of such a suit.

The demurrers of these defendants are, therefore, well taken.

But we are of the opinion that the complaint does not state such a cause of action.

No relief of that kind is asked, and the test to be applied to the pleading is whether, if there was no answer, the plaintiffs would be entitled to a judgment, directing a conveyance to them of their respective shares of the real and personal estate.

By section 1207 of the Code of Civil Procedure it is provided that, “ when there is no answer, the judgment shall not be more favorable to the plaintiff than that demanded in the complaint.”

The plaintiffs would not, therefore, be entitled to a judgment decreeing specific performance of the contract, not having demanded that relief.

But the complaint is defective in another respect. The consideration of the agreement between the heirs was alleged to be an agreement on the part of the plaintiffs and their brothers not to contest the will, and there is no allegation that that agreement was performed.

The testator died on November 9, 1893, and the will was not admitted to probate until January 22, 1891. The court could not presume that there was no contest.

That there should be no contest was a condition precedent to the daughters’ liability. It was a fact to be alleged and proved, and without such an allegation the complaint failed to state a cause of' action.

The demurrers were all well taken, and the judgment should be reversed and the demurrers sustained, with costs, with leave to the plaintiffs to amend the complaint in twenty days on payment of costs.

Pratt and Dykman, JJ., concurred.

Judgment reversed and demurrers sustained, with costs, with leave to the plaintiffs to amend the complaint in twenty days on payment of costs.


text:
    Phebe A. Smith, Respondent, v. John P. Cranford and Another, Appellants.

      Diversion of water from a stream — damages therefoi' — prroof under a plea of accord and satisfaction — accord executory.

    A person is entitled to tlie natural flow of the water in a stream upon his land, and if another first diverts the water from such stream and then permits if, in a dirty and polluted condition, to find its way back into the stream upon such land, the owner is entitled to recover the amount of the loss which he has sustained thereby.

      To sustain the plea of an accord and satisfaction the agreement must be completely executed, and an accord -without satisfaction or an accord partly executed cannot be successfully pleaded as a defense to an action.
    If an agreement was not an accord and satisfaction, but an accord executory, tender of performance is not equivalent to execution for the purposes of a defense to an action.
    Appeal by tlie defendants, John P. Cranford and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 29th day of September, 1894, upon the report of a referee.

      Jesse Johnson, for tlie appellants.

      Fred. Ingraham and James W. Treadwell, for the respondent.
   Brown, P. J.:

Tlie defendants, from September to November, 1890, were engaged as contractors, with the city of Brooklyn, in constructing upon the city’s land an aqueduct in aid of the city’s water supply.

The aqueduct crossed a small stream of water which flowed southerly through the plaintiff’s lands, and upon which the plaintiff had a trout preserve.

The preserve consisted of four ponds constructed by deepening and widening the stream and building dams, and were together about 350 feet in length.

The referee found that the water of said stream was pure, clear and cool, and well adapted to the breeding and raising of trout, and that in September, 1890, said preserve was stocked with about 600 trout three years old, 500 two years old, 2,500 one year old, and 3,000 spawns, and was producing a yearly income of $150.

That in constructing said aqueduct the defendants fouled and polluted the waters of said stream by discharging therein earth, oil and other substances, so that when it reached plaintiff’s lands it was unfit for use and destructive to the health and life of the trout 'in the preserve.

That defendants also diverted the water of said stream from plaintiff’s preserve and diminished the supply, thus rendering the stream, as it flowed through said preserve, sluggish and unsuitable to raising trout, and that in consequence of the pollution and diversion of said stream the trout in the preserve were made sick, prevented from spawning and a large number died, and the loss sustained by reason of tlie aforesaid acts was assessed at tlie sum of $850.

The defendants’ liability^ for tlie result of the diversion and pollution of the stream is settled by the cáse of Covert v. Cranford (141 N. Y. 521).

In that case the court quotes with approval from Judge Denxo’s opinion in Bellinger v. N. Y. C. R. R. Co. (23 N. Y. 42), that the maxim “ Agua eurrit et debet awrrere absolutely prohibits all individuals from interfering with tlie natural flow of water to tlie prejudice of another riparian owner, upon any pretense, and subjects him to damages at the suit of any party injured, without regard to any question of negligence or want of care.”

The finding of the referee as to the diversion of the stream and pollution of the waters has ample support in tlie evidence.

The aqueduct crossed the stream a few hundred feet north of the plaintiff’s property, and intercepted the flow of its water at that point. It was, at that point, about eighteen feet deep, and tlie ground was marshy and full of springs, and to get rid of the water in the aqueduct defendants had two large pumps, which pumped the water out upon the surface, whence it found its way back to the stream in a muddy, roily condition, carrying with it, on its surface, a great deal of oil from the machinery.

The plaintiff was entitled to the natural flow of the water. The defendants’ acts first diverted it from the stream and then permitted it, in a dirty and polluted condition, to find its way into the plaintiff’s ponds. The amount of loss sustained was clearly proved, and, in the assessment of the damages, the referee kept well within the rule applied in Covert’s case.

It appeared that in September, 1890, the plaintiff commenced an action against the defendants to restrain them from interfering with said stream or doing anything to diminish the supply of water flowing to the plaintiff’s ponds or to impair the quality thereof, and that while said action was pending an agreement between the parties was entered into, which provided:

1. That the action should be discontinued.

2. That all dams belonging to plaintiff which had been or might thereafter be damaged or destroyed by the defendants should be replaced and repaired by tliem and kept in good condition until the completion of the work about them.

3. That defendants were liable to pay plaintiff the full value of trout killed during the progress of the work, and that plaintiff should receipt therefor in full from time to time as she should be paid therefor.

4. That defendants should pay plaintiff three dollars per day from September 8, 1890, until the completion of the work in and about said stream.

5. That defendants should pay fifty dollars for the costs and disbui’sements of the suit.

Upon the execution of this instrument, fifty dollars for costs was paid to the attorneys, but no other payment has ever been made under it to the plaintiff.

The defendants claimed the agreement was a bar to the maintenance of this action, and offered to prove that no demand had ever been made upon defendants for payment for dead fish, and that defendants had made a proper tender of performance of the agreement to the plaintiff, which testimony was excluded.

The agreement was not an accord.and satisfaction. It was an accord executory. Tender of performance has never been held for the purpose of this defense to be equivalent to execution.

Accord without satisfaction or accord partly executed cannot be successfully pleaded as a defense.

To sustain a plea of accord and satisfaction the agreement must be completely executed. (Brooklyn Bank v. DeGrauw, 23 Wend. 342 ; Noe v. Christie, 51 N. Y. 270 ; Kromer v. Heim, 75 id. 574.)

The referee properly ruled that the agreement was executory and was not a bar to the maintenance of this action.

None of the other exceptions are well taken, and the judgment must be affirmed, with costs.

Pratt and Dykman, JJ., concurred.

Judgment affirmed, with costs.


author: Dykman, J.:

text:
    Walter S. McAllister, Respondent, v. Niagara Fire Insurance Company, Appellant.

      Silence, when not a waiver — New York standard fire insurance policy — time given the insurer to exercise an option to rebuild.

    Where a person is under no obligation to speak, his silence cannot be construed as a waiver of any of his rights.
    A policy of fire insurance in the New York standard form reserved to the insurer the option either to pay the loss upon the building or rebuild the property, and further provided that if the company elected to pay the amount for which it was liable, such sum was payable within sixty days after the reception of “due notice, ascertainment, estimate and satisfactory proof of the loss.” If, on the other hand, the company elected to rebuild the property, it must give notice of its intention to do so within thirty days after the receipt of the “proof herein required.” It also provided that “the loss shall not become payable until sixty days after the notice, ascertainment, estimate and satisfactory proof of the loss herein required have been received by this company, including an award by appraisers when appraisal has been required.”

      Held, that under the terms of such policy the company must exercise its option to rebuild within thirty days after the receipt of the proof of loss, and upon its failure to notify the insured within such time of its intention to rebuild, its right to do so was forfeited.
    Appeal by tlie defendant, tlie Niagara Fire Insurance Company, from a judgment of tlie Supreme Court in favor of tlie plaintiff, entered in the office of the clerk of the county of Rockland on the 1st day of October, 1894, upon the verdict of a jury rendered by direction of the court -after a trial at the Rockland Circuit, and also from an order entered in said clerk’s office on the 28th day of September, 1894, denying the defendant’s motion for a new trial made upon the minutes.

      Robert Thorne, for the appellant.

      Ambrose G. Todd, for the respondent.
   Dykman, J.:

This is an action upon a policy of fire insurance. Upon the trial a verdict was directed by the court in favor of the plaintiff, and the defendant has appealed from the judgment and from the order denying a motion for a new trial on the minutes of the court.

There seems to be no substantial dispute respecting the material facts of the case.

On the loth day of December, 1892, the defendant issued a policy of fire insurance in tlie New York standard form, by which it insured the house of the plaintiff at Congers, Rockland county, for $2,000.

On the 27th day of August, 1893, the house was totally destroyed by fire, and notice thereof was immediately given to the company.

On the 25th day of October, 1893, and in due time, the plaintiff served upon the company the proof of loss in regular form, as required by the policy. The company made no denial of its liability, and disputed only the amount of damage sustained.

It was unable to agree with the plaintiff on that point, and thereupon demanded the arbitration provided for in the policy. The arbitrators, failing to agree, submitted their differences to the umpire, who, with one of the arbitrators, made an award, by which they found the loss of the plaintiff to exceed the amount for which he was insured. The award was received and retained by the company without objection. On the 10th day of April, 1891, the company notified the plaintiff of its intention to rebuild the house. On the twenty-first day of April the company began to rebuild, and on the 23d day of April, 1891, notified the plaintiff of that fact. This letter was received, in course of mail, and on the fourth day of May following the plaintiff wrote to the company as follows: “We are, to-day, informed that you are taking steps to rebuild the McAUaster house at Congers, Rockland Co., N. Y. As we have already notified you, your right to rebuild is now gone. Anything you do in that direction is at your own peril. We shall not accept the house, and shall sue you for the insurance money as soon as we can legally do so.” The company proceeded, however, with the work, and built the house.

On the nineteenth day of May the sixty days expired, -within which an action could not be commenced upon a policj-, and on the twenty-second day of that month this suit was commenced.

The company proceeded with the house, and on the 3d day of July, 1891, tendered the keys to the plaintiff, who refused to accept the same, and they were left rrpon his desk. He thereupon, forthwith, returned them to the company.

The only question in the case is whether the defendant exercised, its option to rebuild in time. The contention of the plaintiff is that the company should have exercised such option within thirty days after the receipt of the proof of loss required by lines 67 to 80 of the policy^ whereas the defendant contends that the company had itatil thirty days after the service of the award of the arbitrators. The policy reserves to the insurance company the option either to pay the loss or replace the property. If the company elects to pay the amount for which it is liable, that sum is payable sixty days after the reception of “ due notice, ascertainment, estimate and satisfactory proof of the loss.” If, on the other hand, the company elects to replace the property, it must give notice of its intention to do so within thirty days after the receipt of the proof required by the policy, the language being “ proof herein required.”

What is meant by this phrase, and to what does it pertain ? In lines 93, 94 and 95 of the policy it is provided that “ the loss shall not become payable until sixty days after the notice, ascertainment, estimate and satisfactory proof of the loss herein required have been received by this company, including an award by appraisers when appraisal has been required.”

This provision, read in connection with line 3 above quoted, shows that it relates to payment solely. The only provision for indemnity by rebuilding is in the 5th line of the policy, and that provision makes a notice of intention so to do within thirty days of the receipt of the proof of loss a condition precedent to the exercise of the right. While but little aid can be obtained in this case from adjudicated decisions, yet such judicial expression as we have is in favor of our construction. (Clover v. Greenwich Insurance Co., 101 N. Y. 277; McNally v. Phœnix Insurance Co., 137 id. 389.)

In relation to the defense of waiver raised by the defendant, it is sufficient to say that the claim is based upon the silence of the plaintiff, and that alone is insufficient. The plaintiff was under no obligation to speak. The contract of insurance rendered a notice of thirty days after the receipt of the proof of loss of an intention to replace a condition precedent of the right of defendant to do so. That right was forfeited by the failure to give notice in time. The mere silence of the plaintiff could not restore the right to rebuild.

The judgment and order denying the motion for a new trial should be 'affirmed, with costs.

Pratt, J., concurred; Brown, P. J., not sitting.

Judgment and order affirmed, with costs.


text:
    Joshua B. Smith, Appellant, v. William A. Gould, Respondent.

      Agreement to cancel a judgment — check of a third, person a consideration therefor.

    The receipt by a creditor of the checks and a note given by a third person is an ample consideration for an agreement by the creditor to cancel the judgment recovered by him against his debtor, and such agreement will be enforced in a court of equity.
    Appeal by tlie plaintiff, Joshua B. Smith, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Suffolk on the 20th day of April, 1894, upon the decision of the court rendered after a trial before the court without a jury at the Suffolk Circuit dismissing the plaintiff's complaint.

      EUiott J. Smith, Fred. W. Emriehs and Alfred E. Emriehs, for the appellant.

      Livingston Smith, for the respondent.
   Brown, P. J.:

This was an equity action to obtain a decree directing defendant to cancel a judgment recovered by him against the plaintiff, upon the ground that it had been paid and settled.

The learned trial judge dismissed the complaint, placing his decision upon the ground that the plaintiff had not successfully borne the burden of proof, and established the facts of his claim by a preponderance of evidence.

A careful examination of the testimony has led us to a different conclusion, and giving due effect to the denials of the defendant, we are of the opinion that they are entitled to very little considerar tion in view of the undisputed facts of the case.

It appears that on December 15, 1884, the defendant recovered a judgment against the plaintiff in the Supreme Court in Suffolk county for the sum of $736.96, which judgment was docketed in the clerk’s office on that date.

Joshua B. Smith was insolvent, and nothing was paid or collected on the judgment.

On April 27, 1886, Ethelbert M. Smith, a brother of Joshua B., with liis assent and in liis behalf, liad, at his office in New York eity, an interview with Gould in regard to the settlement of the claim, the result of which was that Ethelbert paid to Gould $250 in cash and transferred to him a promissory note made by M. D. Smith & Co., due July 23, 1886, for $150 (which note was subsequently paid), and received from Gould the following instrument:

“Smiti-itown, Apr. 2J, ’86.
“Deceived of Ethelbert M. Smith four hundred dollars in full settlement of all claims against him, Joshua B. Smith or estate of Ebenezer Smith.
“$150 M. D. Smith & Co.’s note due July 23, 1886.
“ 250 also of E. M. Smith.
“ $400 Wl. A. GOULD.”

On May 6, 1893, one Herbert W. Smith, in behalf of the plaintiff, presented to Gould a satisfaction of said judgment and requested him to sign it. Gould declined to sign it, stating as a reason that a bill had accrued since the settlement of the judgment of about seventy dollars, and that he would not sign the satisfaction piece until ho collected that bill.

The foregoing facts are either admitted or appear in the case by uncontradicted testimony.

Ethelbert M. Smith was called as a witness for the plaintiff. Tie gave the details of the interview, which resulted in the payment of the money and the execution and delivery of the receipt. In substance his testimony was that Gould agreed to accept $400 in settlement of the judgment, and to execute a satisfaction thereof, which the witness was to have prepared by a lawyer.

That thereafter he mailed to Gould the note and two checks, one for $50 and one for $200, both payable to Gould’s order, and which were both paid, and in return received by mail from Gould the receipt above set forth.

The defendant admitted the interview in regard to the settlement of the claim and the receipt of the $400. He admitted the presentation to him by Herbert W. Smith of the satisfaction piece, and the request and refusal to execute it, and did not deny that he refused to sign it unless a bill, subsequently contracted, was paid, and he did not deny the execution of the receipt or its delivery to Ethelbert Smith, as testified to by him. He further testified that Ethelbert told him that he would give him one-half of the claim, and that he must take that or nothing. That, at the time of the interview, he did not know he had a judgment against Joshua, and supposed he was settling a claim against Ethelbert. But he admitted on cross-examination that he had placed the claim against Joshua in the hands of his lawyers to sue, and he was unable to mention any claim lie had against Ethelbert except the one up.on which he had sued Joshua. And lie failed to mention any other claim against Joshua except the one upon which judgment had been recovered.

He denied that lie agreed to settle the judgment or execute a satisfaction piece.

Of this testimony it may be said that it is of no importance whatever whether the witness knew he had a judgment against Joshua B. Smith or not. If he did not know it, it was because he had forgotten it. He knew he had a claim, which he had directed his lawyers to sue Joshua upon and remembered its amount. The statement that he supposed he was settling a claim against Ethelbert is unworthy of belief. lie could remember no claim on liis examination except the one he liad sued Joshua upon.

The statement that he did not settle the judgment is contradicted by the receipt. He liad no claim against Joshua except the judgment, and there is no question but the receipt was liis deliberate and intelligent act.

His whole'testimony does not materially contradict the receipt, and that paper, read in connection with the undisputed facts, shows conclusively what the transaction was.

It was a compromise and settlement of the judgment against Joshua, and the fact that it was coupled with a verbal agreement to satisfy the judgment is corroborated by the character of the transaction and the uncontradicted evidence of Herbert "W. Smith.

The point made by the respondent, that a debtor cannot discharge his debt by a payment of a sum of money less than the debt, has no relevancy to the present case.

Joshua B. Smith, the debtor, did not pay the money. He was insolvent, and his brother, who made the payment, was in no way liable to the defendant on the judgment.

The receipt of Ethelbert’s checks and the note was ample consideration for the agreement to cancel the judgment, and the agreement should be enforced. It would be manifest injustice to permit the defendant, after the receipt of the money from Ethelbert, to enforce the judgment against the plaintiff.

The judgment appealed from must be reversed and a new trial granted, with costs to abide the event.

Pratt and Dykman, JJ., concurred.

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


author: Dykman, J. : Brown, P. J.:

text:
    Lewis Roberts, Plaintiff, v. Edward V. Cary, Defendant.

      Trust under subd. 3 of see. 55 of title 2 of chap. 1 of pt. 2 of the Revised Statutes — direction in a trust deed to convey — title taken by the trustees — when the remainder vests■ — power of sale defeated by a conveyance by the beneficia/ry — when trusts fail.

    Certain real estate was conveyed to trustees, in trust, to collect the rents, income and profits thereof, and, after the payment of the expenses for the care and maintenance of the same, to pay over the balance of said income to the grantor during her life; it was further provided that, upon the death of the grantor, a designated person, if then living, should take the fee thereof, or, if he should die before the grantor, the proceeds of such real estate were to form a fund, the income of which was to be paid on the death of the grantor in equal shares to her six children, the trust as to each share to cease with the death of the child entitled thereto, and the proportionate part of the corpxis upon the death of each of such children was to pass to the children or next of kin of such'deceased child.

      Held, that a valid trust was created thereby under the provisions of subdivision 3 of section 55 of title 2 of chapter 1 of part 2 of the Revised Statutes.
    Where such a trust deed contains a direction that the trustee shall convey the fee of the really upon the death of the grantor to the person designated as remainderman, the trustee takes the legal estate and retains it so long as the purposes of the trust require such retention, and, when its design is consummated by the death of the grantor, the real estate vests absolutely in the remainderman.
    Where a sale is directed in an instrument creating a trust, such sale is not in contravention thereof, nor is it repugnant to the grant or devise contained therein.
    Where the beneficiary under the power of sale is also vested as heir or devisee, with the title to the real estate, subject to such power, he may, if competent to convey, before the power has been exercised, convey the real estate, and thus defeat and annul the power of sale.
    Trusts only fail absolutely when vice permeates the entire scheme so effectually that no part thereof can be saved or preserved, and not only do courts frequently uphold a disposition of property made contingent upon a certain event while rejecting a void alternative, hut in any scheme of trust or executory limitation will uphold every valid provision, unless such a course defeats the clear wishes and intention of the grantor or testator.
    The test is whether the upholding of one part and the rejection of another will defeat the presumed wishes of the owner, that is, whether to give effect to the valid part in a given contingency will ho inconsistent with his intent; if not, the legal will he separated from the illegal provisions, and the former will he carried into effect.
    Submission of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure.

      Henry C. Griffin, William H. Hornblower and Charles H. Hughes, for the plaintiff.

      Wale <& Davison, for the defendant.
   Dykman, J. :

This is a submission of a controversy without action, and the basal facts, which are all admitted, are as follows: On the 31st day of July, 1894, the plaintiff contracted to sell and convey to the defendant certain land and premises in the town of Greenburgli, "Westchester county, known as a part of the Rockwell farm and a part of the Paige farm. A deed in form complying with the contract of sale was tendered to the defendant and rejected by him by reason of an alleged defect in the title to the land.

The facts upon which the contention of the defendant is based are these : Prior to March 21, 1887, Harriet E. Roberts, the wife of the plaintiff, was the owner of the Paige farm, and another tract of land called the Miller farm. She was also entitled to the benefit of certain policies of insurance upon the life of the plaintiff. On that day of March, Harriet E. Roberts, with her husband, the plaintiff, executed and delivered a trust deed purporting to convey the Paige and Miller farms, and to assign the policies of insurance to Albert P. Allinson, George II. Roberts and John H. Hall, trustees, in the following language : “ All those certain tracts or parcels of land above mentioned known as the Paige and Miller farms in "Westchester county aforesaid, also all the said policies of assurance, and all benefits to me enuring or to enure hereafter upon the death of the said Lewis Roberts, in trust to collect the rents, income and profits of the said real estate, and after the expenses for care and maintenance of the same are paid, to pay over the balance of said income to the said Harriet E. Roberts during her natural life, and in the event of the death of the said Harriet E. Roberts prior to that of the said Lewis Roberts, then to convey and assign the said land to him in fee, with full power, however, in said trustees at any time when they shall deem it to the advantage of their said trusts so to do, to sell all or any part of said real estate, for cash or on credit and proper deeds and conveyances therefor, to make without liability on the part of the purchaser to look to the application of the purchase money, and the proceeds of such sales to pay to the said Lewis Roberts if he be living at the ■time of such sale.

“ The proceeds of any sale or sales of real estate to form part and portion of the fund created by the payment of the various policies of insurance above mentioned, which said fund or proceeds shall be invested by the. said trustees in good bonds and mortgages in the State of New York or other States or in the legal trust investments or in productive, real estate in the county of Westchester, or the cities of New York, Philadelphia or Chicago, and to collect and pay over the net rents, issues and profits thereof to the said Harriet E. Roberts, wife of Lewis Roberts, during her natural life, and upon her death to collect and pay over the said income, rents, issues and profits in equal shares to her children, Harriet E. Roberts, Anna G. Allinson, Lillie C. Roberts, Burbank Roberts, Lewis Roberts, Jr., and Addison E. Roberts, and upon the death of each of said children to pay over the respective share or shares to which such deceased child or children shall be entitled to the children of such deceased child or children, and in the event of any of my said children dying without leaving aiiy lawful children him or her surviving, then the share of such deceased child to be divided equally among his or her next of kin.”

Qn the same day, and by way of further assurance, the same grantors executed a second deed to the same trustees, relating only to the Paige and Miller farms, which were conveyed in trust for the uses declared by tlie first indenture. We will consider these deeds as one instrument:

Harriet E. Roberts died intestate on April 1, 1892, leaving the plaintiff, Lewis Roberts, surviving her. On the 16th day of June, 1892, the surviving trustees executed and delivered a conveyance of the Paige and Miller farms to the plaintiff. The trustees made no other conveyance of any part of the trust estate, nor have they in any way exercised the power of sale contained in the deed of trust. The defendant rejected the deed tendered to him by the plaintiff, upon the ground that the fee of the Paige farm did not vest in the plaintiff upon the death of Harriet E. Roberts, and was not conveyed to him by the trust deed above set forth to Allinson and others, and that the trust deed of Lewis Roberts and wife to Edward P. Allinson and others was void, and conveyed no title, and for such reason the title attempted to be conveyed by the deed tendered by the plaintiff was invalid and defective, and not in accordance with the contract. The plaintiff here demands judgment that the defendant be directed to receive the deed tendered to him, and to pay the balance of the purchase price of $58,101.51, and interest from October 23, 1894, upon provisions being made for outstanding incumbrances.

The defendant demands judgment that he be relieved from his contract, and that the sum of $6,500 paid on account thereof to plaintiff be refunded. The question submitted relates to the title of Lewis Roberts to the Paige farm, and the defendant’s objection is directed exclusively to the validity of the trust deed executed by Harriet E. Roberts to the trustees in March, 1887.

The general purpose of the trust is easily perceived. Harriet E. Roberts owned the real property, and was also entitled to the avails of insurance policies upon the plaintiff’s life. Under the trust deed she was to have the income until death. On her death the plaintiff, if surviving, was to take the realty in fee. If he died before her the proceeds of the realty, with the insurance money, were to form a fund, the income of which was to be paid on the death of Mrs. Roberts in equal shares to her six children, the trust as to each share to cease with the death of the child entitled thereto, when the proportionate part of the corpus was to j>ass to the children or next of kin of such decedent as the case might be. A power of sale and of investment was given to carry out the purpose of the trust, with the proviso that if the property was sold in his lifetime the proceeds were to be paid to the plaintiff. Lewis Roberts survived his wife. The power of sale had not been exercised, and the surviving trustees conveyed to him pursuant to the direction of the trust deed. The deed established a trust of realty and a trust of personalty, but our concern is with the realty more especially. In respect to that the deed is, “ in trust to collect the rents, income and profits of the said real estate, and, after the expenses for care and maintenance of the same are paid, to pay over the balance of said income to the said Harriet E. Roberts during her natural life.” That is a valid trust under subdivision 3 of section 55 of the Revised Statutes (1 R. S. 723) respecting uses and trusts. Then follows this: “And in the event of the death of said Harriet E. Roberts prior to that of said Lewis Roberts, then to convey and assign the said land to him in fee.” Under that clause Lewds Roberts took or retained a valid vested remainder upon the death of his wife. The trustees took the legal estate and retained it so long as the pmrposes of the trust required such retention, and when that design was consummated it vested absolutely in Mr. Roberts. (Nicoll v. Walworth, 4 Den. 388.)

"When a testator directed that his residuary estate should be divided into shares, and his executors were given one share in trust for each surviving child during his life, with the direction that u¡3on his death his share should be conveyed to his lawful issue, it was held by the Court of Appeals, “ that upon settled rules of construction the issire of any child of the testator living at his death took under the will a vested remainder in the share held in trust for the ¡parent for life, subject to open and let in after-born children and to be divested by their death before the death of the parent.” The court further, said : “ The direction that the trustees on the death of the parent should convey, transfer and pay over and deliver ’ the parent’s share to his or her issue, was inserted to emphasize the right of the remaindermen, and was not the foundation of their title.

“ Those entitled under this will as remaindermen took, not because the power of division was given to the trustees, but independently thereof, as primary devisees in remainder under the will. * * * The issue living are presumptively entitled in remainder and during the life of the parent, they living, have a vested future estate in the parent’s share.” (Campbell v. Stokes, 142 N. Y. 23.)

The power to convey to the remaindermen was not essential, but if in any way important it was duly given and duly executed, for the trustees actually did “ convey and assign said land to liim in fee.”

The portion of the deed which invests the trustees with full power, at any time when they shall deem it to the advantage of the trust, to sell all or any part of the real estate for cash or on credit, and proper deeds and conveyances therefor to make, without liability on the part of the purchaser to look to the application of the purchase money, and the proceeds of such sales to pay to the said Lewis Roberts, if he be living at the time of such sale, the proceeds of any sale or sales of real estate to form part and portion of the fund created by the payment of the various policies of insurance above mentioned, Avhich said fund or proceeds shall be invested by the trustees in good bonds, has not been followed, and that power with which the trustees were so invested has not been exercised, and the event has happened upon which the real property was to go absolutely to the plaintiff. In the event of the execution of the power of sale during the lifetime of the plaintiff, it is expressly provided by the instrument that the proceeds were to be paid to him. This provision is valid and is not repugnant to the trust for his wife, for the exercise of the power in his lifetime wrould simply terminate that trust according to the will of its creator. Such intention is clear, and it is not unlawful. (Belmont v. O'Brien, 12 N. Y. 394.) In that case it was said, in the opinion of the court, as follows : “ Here the owner in fee gave the power by the same instrument that conveyed the estate; and suppose it had been the absolute power to sell and terminate the present use and appoint the money, it could never have been the intention of the Legislature, not only to frustrate the intention of the grantor, but to make an entirely different conveyance, one giving a larger estate to the present eestui que use at the expense, perhaps, of some other intended beneficiary or appointee. Where a sale is directed in the instrument creating the trust, such sale is not in contravention of the trust. Nor is it repugnant to the grant or devise; for that provides the defeasance, new use, executory limitation or whatever it may be.” If, however, notwithstanding these words, it could be said that tlie power might be exercised after the death of Mrs. Roberts, her husband surviving, he alone, ‘in such event, would have been the beneficiary of its execution.

It is clear that, if the power was exercised in his lifetime, he was to have the proceeds, and it would not be seriously claimed that in case, the plaintiff survived his wife and took the fee, the power could be exercised after his death for the benefit of the children.

Tlie clear intent was, that the plaintiff was to have the fee after his wife’s deatli, and that the trust, as to the realty, was to end in case he survived. In this event there was no reason why the power of sale should continue, and, if it did continue, he alone was the beneficiary. In such a case a conveyance by Lewis Roberts would annul the power. Where the owner of the fee is also the beneficiary of the power and competent to convey, his grant annuls the power, as he has no longer an interest in its exercise. Thus it was held, in the Court of Appeals, that where two-thirds of an estate were devised to daughters, subject to a power of sale, tlie proceeds of which were to be paid them when they reached the age of twenty-five years, after they came of age, but before either was twenty-five years old, they conveyed two-tliirds by warranty deed, and thereafter the donee of the power attempted a conveyance, that the deed of the daughters conveyed the title and annulled the power, and that the deed of the donee was ineffectual. This was upon the obvious ground that there was no restraint upon alienation by the daughters, and had there been, it would have been inconsistent with the fee which they held. They were at liberty to convey; by their conveyance they ceased to have any interest in the exercise of the power. (Hetzel v. Barber, 69 N. Y. 1.)

It is a general principle that where the beneficiary under the power is also vested with the title to the real estate as heir or devisee, he may, before the power has been exercised, convey the real estate and thus defeat and annul the power of sale. (Hetzel v. Barber, supra; Garvey v. McDevitt, 72 N. Y. 556.)

Here the power of sale had not been exercised during the life of Mrs. Roberts.

Lewis Roberts had a vested remainder in fee, and the possibility of its defeasance was cut off by liis surviving his wife. To confirm his title he received a conveyance from the trustees. There can be no plausible claim that the power of sale could be exercised thereafter. Beyond doubt, the conveyance of Lewis Roberts, now tendered, would destroy the power, to the beirefit of which, if it could he held to exist after the death of Mrs. Roberts, lie alone was entitled.

We have not noticed the apparent ellipsis in the. trust deed, because we think the scheme of the trust is sufficiently manifested by the language inserted. At the same time it is quite apparent that something has been omitted before the words, The proceeds of any sale or sales of real estate to form part and portion of the fund created by the payment of the various policies of insurance,” where we have placed an asterisk in the extract from the trust deed in the foregoing opinion. The following words at the place would seem to have been omitted: But if he shall die before the said Harriet E. Roberts and shall not be alive at the time of such sale.” We think the intention of the trust deed is not obscured by the ellipsis, because we have the positive statement that the land was to go to the plaintiff in fee if he survived his wife, and the equally clear statement that if the power was exercised during the life of the plaintiff he was to have the proceeds.

If the plaintiff was to have the fee in case of Ifis survival of his wife, and the proceeds in case of a sale in his lifetime, obviously another and alternative disposition of the proceeds arising from a sale of the fee was to he Anade, only in ease that he predeceased his wife, and the power was exercised after his death. Such a construction seems to follow as a matter of course, and it is not opposed by the remainder of the deed.

The foregoing consideration leads us to the conclusion that the trust created by the instrument in relation to the realty was for the life of Mrs. Roberts only, except in the event of its prior termination by the exercise of the power of sale for the benefit of her husband. Upon the death of the Avife there was provided an alternative disposition. The land Avas then to come to the husband, if he survived; if he was dead, the proceeds of the land were to be held upon separate trusts for each of the children of the wife. In the first event the trust terminated Avitli the death of the wife, and in the latter it could not extend beyond two lives in being. There is no difficulty, therefore, in sustaining the trust to that extent.. The instrument, therefore, presents an intelligible scheme, and no valid objection appears against the trust after the life of the wife nor to the provision which vests the fee in the husband if he survives her. It might even be admitted, if necessary, that the power of sale is invalid, the trust in respect to the personalty ineffectual and that the ultimate disposition of the property in the event of the death of the husband prior to the wife is illegal, and yet the vested remainder of the husband would remain unaffected. Trusts only fail absolutely when vice permeates the entire scheme so effectually that no part thereof can be saved and perpetuated.

Not only do courts frequently uphold a disposition of property upon a certain event while rejecting a void alternative, but in any scheme of trust or executory limitation every valid provision will be upheld unless such a course defeats the clear wishes of the grantor or testator. The test is whether the upholding of one part and the rejection of another will defeat the presumed wishes of the owner. That is to say, whether to give effect to the valid part in a given contingency will be inconsistent with his intent. If not,' the legal will be separated from the illegal and carried into effect. (Kennedy v. Hoy, 105 N. Y. 134; Cross v. U. S. T. Co., 131 id. 339 ; Underwood v. Curtis, 127 id. 523; Wooodgate v. Fleet, 64 id. 566.)

In the case at bar the primary intention of the creator of the trust was that Lewis Roberts was to have the absolute fee if he survived his wife. Any other disposition of the real estate was simply in the alternative of his death before that of his wife. The ulterior disposition may be disregarded, and the power of sale ignored without in any way interfering with the wishes of Mrs. Roberts, for in the event that her husband survived her, she had but one wish, and that was that he was to take the property.

We thus find the title of the plaintiff free from- reasonable doubt. There is no dispute about the facts, and the validity of the title tendered depends upon a question of law. That question will be retired by the decision of the court which will constitute an effectual bar to any future objection thereto.

The plaintiff is entitled to judgment directing the defendant to receive the deed of conveyance tendered to him by the plaintiff in pursuance of the contract, and pay the balance of the consideration, $58,101.51, and interest thereon from October 23, 3894, upon payment of tlie several mortgages outstanding upon tlie property as mentioned in tlie submission.

Tlie plaintiff is entitled to tlie costs of this action.

Pratt, J., concurred.

Brown, P. J.:

I coneuron the ground that the primary intention of the creator of the trust was, that Lewis Roberts was to have the fee if he survived his wife.

The ulterior disposition and the power of sale may be disregarded in view of the fact that Roberts survived his wife. The provision in favor of Roberts is valid irrespective of the validity of the residue of the trust deed, and no objection can be successfully urged against his -title.

Judgment on submitted case for plaintiff, with costs; that defendant accept the deed tendered him, and that he pay the balance of the purchase money with interest from October 23,1894, upon payment by the plaintiff of the mortgages outstanding upon the property.

       Tliero is here an apparent omission from the will, referred to in the opinion on page 385.— [Rep.


author: Dartlett, J.: Dykmax, J.

text:
    David Sandman, Respondent, v. Horace Seaman and Another, Appellants.

      Fraudulent conveyance by a debtor— constructive imprisomnent, token terminated by operation of law — suspension of a creditors remedy during its continuance — objection taken too late.

    The fact that a debtor, while putting off the payment oí his debt,, transfers and conveys to his wife property of the value of $4,000 for a consideration of $1,000 is sufficient to warrant the inference of a fraudulent intent on his part in disposing of his property, if, by so doing, he deprives himself of all power to pay his obligation. (Dykman, J., dissenting.)
    The constructive imprisonment of a debtor within the liberties of the jail is terminated by operation of law under the provisions of section 111 of the Code of Civil Procedure upon the expiration of six months after the imprisonment began.
    The taking of the body of a debtor on execution bars the creditor from all other remedies for the collection of the debt so long as the imprisonment continues, but the objection that the remedy of a creditor was so suspended is made too late if made upon the trial of an action instituted by the creditor, when such trial takes place after the termination of the constructive imprisonment.

      Appeal by tlie defendants, Horace Seaman and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on tlie 11th day of April, ISM, upon the decision of the court rendered after a trial at the Queens County Special Term adjudging the conveyance of certain land by the defendant Horace Seaman to be fraudulent and void as to the plaintiff, and appointing a receiver to sell and dispose of the same.

      J. J. Bennett, for the appellants.

      John B. Griffith., for the respondent.
    Judgment affirmed, with costs, on opinion of Special Term.
    Drown, P. J., and Pratt, J., concurred j Dykman, J., dissenting.
   The opinion of the Special Term was as follows :

Dartlett, J.:

The statement made by Horace Seaman upon his examination in supplementary proceedings, as to the consideration moving from his wife for the conveyance of the property to her, seems to me more credible than his statement on the trial of the present action. Assuming the consideration to have been $1,000, and having regard to the fact that there was a mortgage of $1,000 on tlie premises, she seems to have acquired the place for about $3,000 less than it was worth, for the evidence indicates that its value was not less than $5,000. This discrepancy is sufficient to warrant the inference of a fraudulent intent in disposing of it at a time when the owner was in debt to the plaintiff and was putting off the payment of liis debt, especially when we find that by conveying this property away he deprived himself of all power to pay the obligation.

The constructive imprisonment of the defendant Horace Seaman within the liberties of the jail was terminated by operation of law, under section 111 of the Code of Civil Procedure, upon the expiration of six months after it began. That period had expired befoye this case came on for trial, and, lienee, the defendant was not then constructively in custody. Tlie taking of the body of a debtor in execution bars the creditor from all other remedy for the collection of the debt so long as the imprisonment continues. (Koenig v. Steckel, 58 N. Y. 475.) It would seem, therefore, that the defendant might have obtained a stay of proceedings if he -was on the limits when the summons was served. He does not appear, however, to have raised the objection that the remedies of -the creditor were suspended, or to have brought the matter in any way to the attention of the court, until the trial, when it was too late, because, as already suggested, the constructive imprisonment had then come to an end. There must be judgment for the plaintiff, with costs, against the defendant Horace Seaman.

Dykmax, J.

(dissenting):

This is an appeal from a judgment entered upon a decision of a judge after a trial before him without a jury.

The action was brought to set aside a deed of conveyance of real property made by the defendant Horace Seaman to the defendant Estelle F. Seaman, who is his wife, upon the ground of fraud. The basal facts are these :

The plaintiff as the agent of Fisher & Levy sold a bill of goods to the defendant Horace Seaman in July, 1890, amounting to $129.25. The defendant Horace paid a part of the bill, and a balance of $89.27 remained unpaid in January, 1891. The plaintiff paid that balance to Fisher & Levy at the request of the defendant Horace Seaman, who promised the plaintiff to repay him in a few days.

Upon being’ requested to make such jrayment, the defendant Horace gave the plaintiff his promissory note for the amount, payable in three months, which the plaintiff accepted. When that note became due it was not paid, and the defendant Horace Seaman gave the plaintiff a new note for the amount of the old one and the accrued interest, payable in four months, and upon this last note the plaintiff obtained the judgment which forms the basis of this action.

On the 27th day of December, 1892, the defendant Horace Seaman was arrested and imprisoned in Raymond street jail in Kings county, upon an execution issued against his person upon the judgment of the plaintiff. He was admitted to the jail limits January 3, 1893, and it does not appear that he has ever been discharged therefrom. The amount of the judgment upon which he was imprisoned wms $203.22.

On the fall day of March, 1891, the defendant Horace Seaman executed to his wife a deed of conveyance of certain real property in Queens county, and the trial judge has found that such conveyance was executed and accepted for a consideration far below the actual value of the premises, and with the intent to hinder, delay and defraud the creditors of the husband, and especially the plaintiff.

There is no proof in the case of any intent to defraud creditors, except the inf erences to be drawn from the transaction itself and the surrounding circumstances, and they are insufficient to justify an implication of fraud against the wife.

The evidence is uncontradicted which proves an indebtedness from her husband to her in a considerable sum of money, and the law is well settled that a debtor has a legal right to appropriate his property to the payment of one creditor in preference to another, and it follows that no Í2-aud can be predicated upon such a transaction.

All the wife lias done in this case is to receive a conveyance of the property in question from her husband in payment of liis liability to her, and no fraud can be inferred against her therefor, because the law justifies her act. The only ground for an inference of fraud, or fraudulent intent against the husband, is the fact that the property was worth more at the time of the transfer than the husband owed his wife.

Assuming' the fact to be so, is that a sufficient ground for the inference of a fraudulent intent ? This deed can only be nullified for fraud, and cannot be set aside in this suit for inadequacy of con ■ sideration, yet that is all we have, and even that is not very glaring.

As we have seen above, a debtor may turn over property to pay one creditor in preference to another, and the exercise of that right signifies an intention to prevent that other from collecting his claim. The very act which the law authorizes has the effect to hinder and •delay creditors who are not preferred. (Jewett v. Noteware, 30 Hun, 194.)

Our conclusion is that the finding of fraud is unsupported by evidence, and also that the title of the wife was unimpeaclied, because it appeared that there was a valuable consideration for the conveyance, and it did not appear that she was aware of any fraudulent intent on the part of her husband. (Starin v. Kelly, 88 N. Y. 421.)

Under- such circumstances fraud cannot be imputed to the wife, and the conveyance to lier cannot be disturbed.

We cannot determine tlie legal effect of the imprisonment of the defendant Horace Seaman upon tlie execution issued against bis body upon the judgment of the plaintiff against him, because the facts are not set up in the answer in this action; and, although the evidence was introduced without objection and is contained in the record, we cannot order an amendment of tlie answer so as to make it conform to the proof, because the amendment would introduce a new defense.

Upon the first ground discussed the judgment should be reversed and a new trial granted, with costs to abide the event.


author: Gaynor, J. :

text:
    Frederick W. Shrump, Respondent, v. Walter E. Parfitt, Appellant.

      Award of arbitrators — not inteifei'ed with by the courts except for fraud — when it may be rejected, in part.

    Where arbitrators keep -within their jurisdiction, their award is unassailable unless for corruption, fraud or like misconduct, and will not be sot aside for errors of law or fact upon their part.
    Where the award of arbitrators is severable, that which is improper may be rejected, allowing the balance which is proper to stand.
    Appeal by tlie defendant, Walter E. Parfitt, from a judgment of tlie Supreme Court in favor of the plaintiff, entered in tlie office of the clerk of the county of Kings on the 19th day of September, 1894, upon tlie award of arbitrators, and also from an order of the Supreme Court, made at the Kings County Special Term and entered in said clerk’s office on tlie 20th day of August, 1894, confirming the arbitrators’ award and denying the defendant’s motion to vacate the same.

      Herman F. Koej?ke, for tlie appellant.

      Horatio G. King, for the respondent.
    Order affirmed, with costs, on opinion of Gaynor, J.
    Present— Brown, P..J., Dyicman and Pratt, JJ.
   The opinion of the Special Term was as follows :

Gaynor, J. :

The defendant objects to the award rrpon the ground that the arbitrators exceeded their powers.

If they did not exceed their powers, in other words, if they kept within their jurisdiction, their award is unassailable, unless for corruption, fraud or like misconduct, and will not be set aside for errors of law or of fact on their part. (Fudickar v. Insurance Company, 62 N. Y. 392; Masury v. Whiton, 111 id. 679; Herbst v. Hagenaers, 137 id. 290; Code Civ. Proc. § 2374.)

After rejecting the stones the defendant mutilated them by knocking off the corner or a piece of the molding of each with a hammer. In his capacity of architect he had the power, and it was his duty to reject stones unfit and not in accordance with the contract. It ■was submitted to the arbitrators by the arbitration agreement to determine (1) the number of stones rejected and injured with the hammer as above stated; (2) the value of each stone after rejection and before the injury ; (3) the damage done by reason of the said acts.

The arbitrators have precisely determined these three tilings by their findings, numbered 12, 13, 16, which correspond in so many words to the propositions submitted. If they had made no other finding, ingenuity could suggest no objection to their award, within the narrow limits allowable. They have specifically found in addition, and unnecessarily, that the defendant had no right to arbitrarily reject stones, that he did not reject any by marking them with a pencil, that he did not notify the plaintiff of the rejection of the stones before breaking or mutilating them, that he arbitrarily mutilated them, and, substantially, that those he so mutilated were fit, and, therefore (by implication), arbitrarily rejected.

I do not see, and cannot say, that these findings necessarily affected the result. They were irrevelant, and, so long as the award was within the jurisdiction of the arbitrators, are not to be regarded. The contention for the defendant is that the mere rejection of the stones, whether they were fit or unfit, made them useless except to be broken up for rubble, for which use their value would be only thirty-four dollars and fifty cents, as is found ; and that as the chipping off of the corners or moldings could not affect their value for this use, the defendant did them no damage.

Tlie reason, it is said, why rejection would make them nearly valueless, is that as they were fashioned for this particular church tower they could he used for nothing else except rubble, as it is altogether improbable that any tower exactly like it will ever be built.

The arbitrators, as we have seen, were made the judges of what the stones were worth after rejection and before being mutilated; and as it is plain that in determining such value, as they did in so many words, it mattered not whether they were rejected arbitrarily or in good faith, the finding that they were rejected arbitrarily, and the similar findings, are of no consequence.

The rejection is what affected their value by destroying their use, and not the good or bad faith with which they were rejected.

Hence it cannot be assumed that the arbitrators found that they were worth more after being rejected arbitrarily than if they had been rejected in good faith.

Some of the stones broken by the defendant w'ere already laid, and by finding lo it is determined that the plaintiff was damaged $100, the cost of relaying'other stones in their place. I do not see how this comes within the submission ; but as it is severable, it may be rejected, letting the rest stand. (137 N. Y. 296, supra.) The basis which the arbitrators had to take by the submission — for so it is therein set down — was that the stones were rejected before they were mutilated; and the only measure of damage allowed to them was the injury to the stone after rejection.

The basis for the finding of $100 damage was that the stones were fit, and should not have been rejected, and their rejection damaged the plaintiff to the extent of the cost of relaying other stones in their place. In the same way it may be urged that the finding that all of the stones were fit, affected the award of the arbitrators. .But, as has been seen, it cannot be certainly said, if at all, that it affected their determination of the value of the stones after rejection and before being mutilated. That determination of value included the laid stones which were mutilated, and all, and was well made, and it was as far as they could go. But leaving aside what has been said above, it would be sufficient to say that if the language of the award enabled the court to say that the arbitrators considered the arbitrary rejection of the stones as increasing their value after 'rejection over what it would be if they had been properly rejected (a tiling too absurd to be attributed to them, the stones being intrinsically of the same value in either case), it was after all only an error of law on their part, and, as has been seen, the court may not regard it.

The award is also objected to on the ground that it is not definite and final, but no reason or particular therefor is assigned. The award is confirmed to the extent of $1,317.93.


author: Pratt J.:

text:
    The People of the State of New York ex rel. Horace K. Hill, Street Commissioner of the Village of Williamsbridge, Westchester County, N. Y., Relator, v. Arthur J. Mace and Others, Constituting the Board of Trustees of Said Village, Defendants.

      Removal of a, street commissioner from office — proof required.

    In order to remove a person from office, acts or omissions relating to liis office, some dereliction, neglect of duty or incapacity, affecting liis general character . and fitness for office, must be found to have existed.
    The fact that the street commissioner of a village openly refused to obey an order of the board of trustees of such village may not be sufficient to justify his removal from office, where the words were spoken under exasperating circumstances and while the street commissioner was laboring under the excitement of anger and a sense of indignity, if, as a matter of fact, he did obey such order of the board of trustees.
    CnimoRARr issued- out of the Supreme Court and attested oil the 18th day of July, 1894, directed to Arthur J. Mace, John Davidson, Robert P. Johnston, Daniel P. Lellis and John II. Maloy, constituting the board of trustees of the village of Williamsbridge, Westchester county, N. Y., commanding them to certify and return to the ofiiee of the cleric of the county of Westchester all tlieir proceedings, decisions and actions relating to the removal of the relator from the office of street commissioner of said village.

      J. IF. Bastrom,, for the relator.

      Isaac JS. Mills, for the defendants.
   Pratt J.:

This is a certiorari brought to review the action of the defendants as trustees in removing the relator from office as street commissioner. The facte need not be stated at length further than to say that the charge was misconduct in office.

The first charge upon which he was found guilty reads as follows:

“ At a meeting of the board of trustees held on the 14th day of June, 1894, charges were preferred against the commissioner, as follows:
“ I do hereby prefer charges of misconduct in office against II. K. Hill, Street Commissioner of the village of 'Williamsbridge, as follows :
“ 1. That he has disobeyed the resolutions passed by the Hoard of Trustees of the village of Williamsbridge at an adjourned regular meeting of the said Board of Trustees, held in the Town Hall May 24th, 1894, commanding him, among other things, that no work be done on any street unless authorized by this board,’ in that
" (A) On or about the 6th day of June, 1894, without having been authorized by the board of trustees, the said II. 3L Hill, as street commissioner, did commence to fill in with earth the street known as lltli street, filling in the street both east and west of the White Plains road.”

Upon this charge there was a fatal variance between the proof azid the charge, and a failure of proof to substantiate the charge.

It appeared in the evidence that the resolution which it was claimed the relator disobeyed and upon which the charge was based, azzd which was served upon the relator, was as follows :

“II. K. Hill:
“By a resolution passed last night you were ordered to make written reports at every regular meeting of the board of all work dozze since previous meeting, the number of men, teams and carts employed at date of report; also to report when any street is completed. And you are further ordered to begin no ziew work ozi any street without orders from the board of trastees.
“ By order of the board.
“BOBEBT WALLACE,
Tillage Clark.”

So that the order was that no “ new ” work on any street should be done without orders from the board of trustees. The fact turned out to be that a trifling amount of work was done on Eleventh street, which had never been finished. It was not new work, and was so understood by the relator. It was a slight repair upon a street that had recently been graded that liad sunken in places by reason of frost.

The only other charge u]ion which he ivas convicted is the following:

“TV. That on the 1th day of June, 1894, when the board of trustees at a meeting thereof passed a resolution, ‘ That the street commissioner is hereby ordered to stop digging the cellar at new school house, and also supplying stone to the contractors for that building,’ and said resolution was communicated to him by the president pro tern, of the said Hoard of Trustees, the said II. K. Hill, street commissioner, openly, before said meeting of the Board of Trustees, did refuse to obey the said resolution.”

In regard to this charge it is admitted by the defendants and made a part of the case as follows: “ It is also admitted that the relator did not dig or cause to be dug any earth from the cellar at the new school house and did not supply any stone to the contractor for that building .after the 1th day of June, 1894, the date of the passage of the last' above-named motion or resolution (referring to the resolution upon which the above charge was based), but that he complied strictly with the instructions in said resolution contained.”

All, therefore, that is left of the second charge is that, being asked by the president of the board, he “openly, before said meeting, * * did refuse to obey the said resolution,” but it is admitted above that he did obey the same to the letter. The circumstances under which that statement was made, taken in connection with the fact that he did obey it, do not make it sufficient cause of misconduct to warrant his removal from office. The words were spoken under exasperating circumstances, and while the relator was laboring under excitement of anger and a sense of indignity, and was not intended as a refusal to obey all lawful orders of the trustees. Hut merely saying what he did upon this occasion does not constitute neglect, malfeasance or misfeasance in office, and there was no authority to remove him from office shown. In order to remove a person from office there must be found acts or omissions relating to his office, some dereliction, neglect of duty or incapacity affecting bis general character and fitness for office. (Throop on Public Officers, § 360 ; People ex rel. Munday v. Fire Comrs., 72 N. Y. 445 ; People ex rel. Sims v. Fire Comrs., 73 id. 437; People ex rel. Keech v. Thompson, 94 id. 451.)

To go back to the first charge, it is proper to remark that there is some confusion in the evidence, as it does not clearly appear who was in the habit of giving orders to the street commissioner, whether the committee on highways, the board of trustees, or whether the commissioner looked to the by-laws printed for the village for instruction. lie had been instructed previously to repair this street, and there is no proof whatever that he either willfully or knowingly ever disobeyed any order of the board of trustees.

The judgment should be reversed and the relator restored to office.

Dykman, J., concurred.

Proceedings of the trustees reversed, with costs, and relator restored to his office.


author: Pratt, J. :

text:
    Elizabeth A. Gray, Respondent, v. James C. Gray, Appellant.

      Answer stricken out because of disobedience of an order.

    The power of the court to strike out an answer because of a disobedience of its order has not been abolished by the Code of Civil Procedure.
    Appeal by the defendant, James C. Gray, from'a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 26th day of May, 1894, upon the decision of the court rendered at the Kings County Special Term.
    This action was brought to obtain a divorce on the ground that the defendant had been guilty of adultery.

      Wm. Woodward .Baldwin and Charles A. Boston, for the appellant.-

      Frederick II. Man, for the respondent.
   Pratt, J. :

The power to strike out an answer for disobedience of an order lias not been abolished by the Code (Brisbane v. Brisbane, 34 Hun, 339), and in the present case was wisely exercised. The order to that effect was right.

An examination of the record on the appeal from the judgment shows that the plaintiff fully proved the cause alleged for dissolving the marriage. The only question upon which a doubt is possible is whether the plaintiff had acquired a domicile in New York prior to beginning her action. She had been in this State several months before the action was begun. She testified on the trial to her intention to fix her residence here, and the trial court credited her testimony. Her conduct before and after beginning the suit corroborated her testimony to such an extent that a finding against her on that point would have been error.

The judgment is right and is affirmed.

Drown, P. J., and Dyicman, J., concurred.

Judgment affirmed, with costs.