text:
    James M. Pender, as Administrator, etc., of Maggie B. Pender, Deceased, Respondent, v. The Brooklyn City Railroad Company, Appellant.

      JSrroneous admission of evidence, when not a ground of reversal — hypothetical questions to expert witnesses.

    A judgment will not be reversed by reason of the erroneous reception of evidence, where the reception thereof could not have prejudiced the unsuccessful party.
    It is the privilege of counsel upon the trial of an action to propound hypothetical questions to expert witnesses, and to assume within the evidence any state of facts which he claims the evidence justifies and to obtain their opinion thereon.

      Appeal by the defendant, The Brooklyn City 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 Kings on the 14th day of March, 1894, upon the verdict of a jury rendered after a trial at the Kings County Circuit, and also from an order entered in said clerk’s office on the 15th day of March, 1894, denying the defendant’s motion for a new trial made upon the minutes.

      Morris Whitehouse, for the appellant.

      Henry 1). Hotehhiss and William T. Gilbert, for the respondent.
   Pratt, J.:

This is an appeal from a judgment rendered upon a verdict of a jury giving the plaintiff damages for the loss of services of his child, alleged to have been caused by the negligence of the defendant, and from an order denying a motion for a new trial.

The evidence upon various circumstances connected with the trial was conflicting, but there seems to be no such preponderance of evidence in favor of the defendant as Avould 'have Avarranted a dismissal of the complaint.

The cause Avas submitted to the jury by a charge as favorable to the defendant as the facts Avarranted. The judgment must stand unless some erroneous ruling was made in the course-of the trial.

The principal exception relied on is to the following question put to a Avitness for the plaintiff: “ Q. Running at a speed of ten or twelve miles an hour at Avliat distance could it (the car) be stopped ? A. About one hundred feet.” This question was objected to and alloAved by the court. It was asked of a motorman, and Avas' not objected to on the ground that he was not an experienced man in running cars as motorman, but upon the ground that the question contained an assumption that the ears were running at that rate, and this misled the jury. On the question of speed the evidence was conflicting; one Avitness said the car Avas running at a high >rate of speed, another that it was going very fast; a Avitness for defendant that it was going about six miles an hour. Besides, it appeared in the evidence at AAdiat point the car struck the girl, and Avliere it was brought to a standstill after the accident. Therefore, the distance at which a car cotdd be stopped Avhen going at different rates of speed was not material.

Another answer to defendant’s contention upon this matter is that the evidence could not have prejudiced the defendant, as the greater the speed at which the car was running the less the negligence of the motorman in failing to stop the car, or, in other words, the greater the distance within which the car could be stopped.

Again, ive think the question Avithin the limits of the evidence, a high rate of speed o/nd gowig very fast Avould seem to justify such a question.

It is always a privilege of counsel to propound hypothetical questions to experts and to assume within the evidence any state of facts ■which he claims the evidence justifies and have their opinion thereon. (Harnett v. Garvey, 66 N. Y. 641; Filer v. R. R. Co., 49 id. 42.)

The judgment and order should be affirmed, with costs.

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

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


source: Caselaw Access Project

author: Pur Curiam : Gaynor, J.:

license: Public Domain

text:
    In the Matter of the Complaint of James Jarvis and Others, Constituting the Commissioners of Improvements of the Town of Westchester, Westchester County, N. Y., Appellants, v. James M. Waterbury and Others, Respondents.

      Tenure of office under section 3 of article 10 of the Constitution of Tfeio York— Commissioners of Improvements of the town of Westchester.

    The provision of section 3 of article 10 of tlie Constitution of the State of New York, providing that, “ when the duration of any office is not provided for hy this Constitution, it may be declared hy laAV, and if not so declared such office shall he held during the pleasure of the authority making the appointment,” relates not only to offices existing at the time of this enactment hut also to offices since created. It relates, liOAvever, only to cases where the appointment is continuous and not to cases Avhere the power of appointment is exhausted Avhen once exercised, and it does not apply to cases Avliere the tenure of office is fixed hy statute.
    By the provisions of chapter 453 of the Laws of 1889 the commissioners of improvements of the toAvn of Westchester, Westchester county, New York, are created a body corporate hy the appointment of five persons hy the supervisor, with power in said body corporate to fill vacancies caused therein. The tenure of tlieir office is unlimited, and the corporation lias the attribute of perpetual succession by means of its own members filling vacancies.
    The supervisor of the town lias power to fill a vacancy in said commission only in default of the remaining commissioners doing so.
    The title to the office of commissioner of improvements of the town of Westchester, Westchester county, New York, can be tested only by quo warranto.
    Appeal by the plaintiffs, James Jarvis and others, constituting the commissioners of improvements of the town of Westchester, Westchester county, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Westchester on the 16th day of October, 1894, denying the plaintiffs’ application for an order requiring the defendants to turn over to them certain books, papers, property and other matters in the possession of the said defendants and belonging to the board of commissioners of improvements of the town of Westchester.
    On or about the 28th day of June, 1889, James M. Waterbury, James C. Cooley and E. A. Watson, together with A. H. Morris and William II. Burcliall, were appointed commissioners of improvements of the town of Westchester by the then supervisor of said town under and by virtue of chapter 453 of the Laws of 1889. Subsequent to said appointment and the qualification of said persons as such commissioners of improvements of said town of Westchester, A. II. Morris and William H. Burcliall resigned as such commissioners, and the then supervisor of said town appointed William II. Sands and William Henderson as commissioners to fill the vacancy caused by such resignation. Sands and Henderson both failed to qualify.
    On the 8th day of May, 1894, the complainants, James Jarvis, August Diehl, Isaac Butler, William II. II. Carter and James Daily, were appointed by the then supervisor of said town as commissioners of improvements of such town. At the tima of such appointment James M. Waterbury, James C. Cooley and F. A. Watson were acting as commissioners of improvements, they never having been removed from office nor having resigned therefrom.

      Seward Balter and John IV. Bertram, for the appellants.

      Martin J. Keogh, for the respondents.
   Pur Curiam :

Affirmed on opinion of the judge at Special Term, and on the additional ground that the remedy sought should have been by quo warranto.

The order should be affirmed, with costs.

Present — Pratt and Dykman, JJ.

Order affirmed, with ten dollars costs and disbursements.

The opinion of Gaynor, J., at Special Term was as follows :

Gaynor, J.:

Section 3 of article 10 of the Constitution of this State provides that When the duration of any office is not provided for by this Constitution, it may be declared by law, and if not so declared such office shall be held during the pleasure of the authority making the appointment.” This relates not only to offices existing at the time of its enactment, but also to offices created since. (People ex rel. Lyndes v. The Comptroller, 20 Wend. 595.) But it relates'only to cases where the power of appointment is continuous, and not to cases where the power of appointment is exhausted when once exercised. (Bergen v. Powell, 94 N. Y. 591.) In other words, and more plainly speaking, it does not apply to cases where the tenure of office is fixed by the statute. In the present «ase the statute (Chap. 453,-Laws 1889) fixes the tenure of the office. Section 1 authorizes the supervisor to appoint five commissioners, who shall be a body, corporate and known as the commissioners of improvements. Section 3 provides that whenever a vacancy shall occnr through death, resignation or refusal to act, the remaining commissioners shall appoint a person to fill the vacancy, and that in default of their so doing the supervisor shall fill. it. It is therefore obvious that the statute provided for the creation of a body corporate by the appointment of five persons by the supervisor, and for its perpetuity by the filling of vacancies. The duration of the office of the commissioners is “ provided for ” in this scheme of the statute. The statute makes the tenure unlimited. It creates a body corporate with the attribute of perpetual succession by means of its own members filling vacancies. It cannot therefore be said that the statute does not provide for the duration of the office. Chapter 302 of the laws of 1859 presents an instance of the appointing officer’s power being exhausted by once making the appointments. (People ex rel. Brown v. Woodruff, 32 N. Y. 361.) The provision in section 3 that the said officers shall hold their respective offices for one year,” refers to the officers of the body corporate provided for in the preceding sentence, namely, the president, treasurer and secretary. It is also fatal to this application that the supervisor has never removed the three remaining members of the body corporate whose places he assumes to fill, if he had the power. It is aside from the case, but it should be considered whether the body has the power to act while a vacancy exists. (People ex rel. Henry v. Nostrand, 46 N. Y. 375.)

The motion is denied, without -costs.


author: Dykman, J.:

text:
    In the Matter of the Application of William H. Smith and Another, Respondents, for a Writ of Habeas Corpus Directed to Z. Taylor Emery, M. D., Health Commissioner of the City of Brooklyn, Appellant.

      Police powers — •execution of quarantine laws and measures relating to the publie health — when constitutional rights a/re not invaded thereby — isolation of persons ' exposed to smallpox — section 24 of article 2 of chapter 661 of 1893.
    The execution of quarantine laws and measures relating to the public health may-result in the deprivation of personal liberty and the destruction of property, but it by no means follows that any constitutional rights are invaded or abridged by the enforcement thereof.
    Due process of law, as the term is used in the Constitution, requires only conformity to the rules and methods of free government, and the omission to exercise powers interdicted by the Constitution, or delegated to the other great departments of government.
    The Constitution does not guarantee the inviolability of the right to trial by jury in all cases, but only in “ all cases in which it has heretofore been used ; ” and prior to the Constitution of 1846 a jury was not the ordinary tribunal to determine questions in relation to the public health where the public interests required action to be taken.
    Where there exists great and imminent peril to the public health of the city of Brooklyn by reason of impending pestilence from the spread of smallpox, the board of health of such city is bound to guard against the introduction of that disease by the exercise of proper and vigilant medical inspection and control of all persons and things arriving in that city from infected places, or which from any cause are liable to communicate contagion. It becomes the duty of such board, under the provisions of section 24 of article 2.of chapter 661 of the Laws of 1893, to isolate all persons and things infected with or exposed to smallpox, and the isolation and detention of a person exposed to such disease is within the scope of the powers and duties of such hoard.
    Appeal by Z. Taylor Emery, M. D., health commissioner of the city of Brooklyn, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 1st day of June, 1894, directing the appellant to discharge the relators from custody.
    • Alexander II Van Oott, for the appellant.
    ■ Horace Graves, for the respondents.
   Dykman, J.:

This is an appeal from an order discharging the relators from detention. The proceeding was by habeas corpus, and the order was made upon the petition of the relators and the return of the defendant. The relators did not traverse the return, but it is to be gathered from the appeal book that the case proceeded upon the theory of a demurrer ore tenus to the return.

The return consists of the statement of the commissioner, the affidavit of the department’s vaccinator, and the declaration, approval and proclamation of the health commissioner, the mayor of the city and the president of the Kings County Medical Society, made in pursuance of section 5, title 12, chapter 583 of the Laws of 1888.

The proclamation was this: “We, the Mayor of the City of Brooklyn and the President of the Medical Society of the bounty of Kings, do hereby approve the taking and doing of the measures and acts above declared necessary by the Commissioner of Health of the said City of Brooklyn, and we, the said Mayor, President and Commissioner, do hereby declare that the peril from an impending epidemic of smallpox shall be deemed to exist, and to exist for the period from January 1st, 1894, to and inclusive of July 1st, 1894. And we do hereby proclaim the same to have existed, and to so exist ior said period. Dated Brooklyn, N. Y., May 4th, 1894.” Signed by the mayor, president of the medical 'society and the commissioner of health.

The measure declared necessary, to which a reference was made in the proclamation, was the declaration of the commissioner of health, stating that thorough and sufficient vaccination of every citizen who had not been successfully vaccinated within the last three months, as in the judgment of the commissioner of health rendered such person immune, should be procured.

And whenever any person in said city should refuse to be so vaccinated, such person should be immediately quarantined, and detained in quarantine until he consented to such vaccination. The return of the commissioner to the writ is as follows : ■

“ Obedient to the command of the annexed writ, I hereby certify and return that before the said writ came to me, on the 3d day of May, 1894, at four o’clock in the afternoon, "William H. Smith and Thomas Cummings were placed under quarantine by my orders, as such Commissioner of Health, in the premises Nos. 129-131 Franklin street, in the City of Brooklyn, under and by virtue of the authority vested by law in. me to take such precautions as are necessary for the protection of the public health against smallpox. That each of the said persons was and now is so detained in quarantine in the said premises by reason of his refusal to permit a duly authorized vaccinator of said Department of Health, or some reputable physician of the City of Brooklyn, to vaccinate him.
“ That as appears by the affidavits of Dr. Henry L. Shelling, Dr. George Wieseckel and Dr. Louis Lless, all verified the 4th day of May, 1894, and annexed hereto, the said doctors severally requested the said persons detained as aforesaid to submit to vaccination, and that the said persons refused the request of each of the said physicians and still continue to refuse the same.
“ That since the month of December, 1893, smallpox has been present to an alarming extent in said City of Brooklyn. That during the months of January, February, March, April and May, 1894, the said disease has been epidemic in the city, and the utmost precaution and the most thorough preventive measures have been necessary in order to prevent the spread of the disease beyond control.
That it is a well-established scientific fact that vaccination is a preventive of said disease in the person vaccinated, and it has been for many years demonstrated that thorough vaccination of persons in crowded centres is indispensable to the prevention of epidemic smallpox. That in pursuance of the authority vested in me by law, I have adopted every possible and proper means for securing such thorough vaccination of the citizens of Brooklyn in order to prevent the menaced spread of smallpox therein.
That as I was informed and believed, before ordering the quarantine to be placed upon the said premises and that said persons be detained therein, the said William H. Smith is the proprietor of an express delivery business, and that the said Cummings is employed by him in said business, and that they are both actively engaged in the prosecution thereof in the cities of New York and Brooklyn, and especially in Greenpoint and the Eastern District of said City of Brooklyn, which latter has been one of the worst infected centres of said city. That said business is of a general nature, and may include the carrying of trunks, bedding, furniture and numerous other articles which may come from infected centres and be infected with the germs of smallpox, and it became at once apparent to me that the said Smith and Cummings were unusually exposed to such contagion, and that they might be seized therewith, and by communication with others spread the same, and that it was, therefore, of special importance that they should be vaccinated at once.
“ That I, therefore, ordered quarantine to be placed upon the said premises, and that said persons be detained therein as aforesaid until they consented to be vaccinated either by a duly authorized vaccinator of the said Department or by some reputable physician. .That I took such measures in order to protect the citizens of Brooklyn, and in the full belief that if the said Smith and Cummings were permitted to continue in their said business without being so vaccinated they might be the means of most serious fatal consequences to other citizens with whom they might thereafter come in contact, the danger thereof being especially apparent to me from the fact that, as appears by the records of said department, there has been at least twenty-eight (28) cases of smallpox in and about the seventeenth ward of said city since the 1st day of April, 1894, a list of the names and localities of which cases is hereto appended, marked Exhibit A.’ That a proclamation of great and imminent peril has been duly made, pursuant to section 5 of title 18 of chapter 583 of the Laws of 1888, by the mayor, the president of the Medical Society of the County of Kings, and a copy thereof is hereto annexed, marked Exhibit B.’ All of which I certify, and have here the bodies of tbe said William IT. Smith and Thómas Cummings as by the said writ to me commanded.
“ Dated Brooklyn, N. Y., May 4, 1894.
“ Z. TAYLOR EMERY, M. D.,
Commissioner of Health?

Chapter 661, article 2, section 24 of the Laws of 1893 is as follows : “ Section 24. Contagious and Infectious Diseases. Every such local board of health shall guard against the introduction of contagious and infectious diseases by the exercise of proper and vigilant medical inspection and control of all persons and things arriving in the municipality from infected places, or which from any cause are liable to communicate contagion.

“ It shall require the isolation of all persons and things infected with or exposed to such diseases, and provide suitable places for the treatment and care of side persons who cannot otherwise be provided for. * * * It shall provide at stated intervals a suitable supply of vaccine'virus of a quality and from a source approved by the State Board of Health, and, during an actual epidemic of smallpox, obtain fresh supplies of such virus at intervals not exceeding one week, and at all times provide thorough and safe vaccination for all persons in need of the same.”

Section 5 of title 12 of chapter 583 of the Laws of 1888: In the presence of great and imminent peril to public health of the city of Brooklyn by reason of intending pestilence, it shall be the duty of said commissioner to take such measures and do and order and cause to be done such acts and make such expenditures (beyond those duly estimated for as provided) for the preservation of the public health from such impending pestilence as he may, in good faith, declare the public safety and health to demand, and the mayor. of the. said city and the president of the Medical Society of Kings County shall also, in writing, approve. And such peril shall not be deemed to exist except when and for such period of time as the mayor, president of the medical society and health commissioner shall by proclamation declare.”

The preservation of the public health is of primary importance, and boards of health have been organized for that purpose, under the police power of the State, with power to take necessary measures and precautions to secure sanitation and health.

It is a curious fact in connection with this case that on the 4th day of April, 1778, at the first session of the Legislature under the formation of the State government, a law was passed to prevent the spreading of smallpox, by which the justices of the peace were authorized to appoint houses where persons infected with smallpox might reside, and providing for the forcible removal of such persons to such houses. (Laws of 1778, chap. 36.)

On the 1st day of May, 1784, soon after the close of the Revolutionary war, the Legislature passed the first quarantine law of the State, entitled “ An act to prevent the bringing in and spreading of infections distempers in this State.” By that statute it was provided that all vessels having on board any person infected with any contagious distemper, or coming from any place infected with such contagious diseases, should not come into any port of this State, and should not come nearer to New York than Bedloe’s Island, and should be obliged to perform quarantine under certain specified regulations. (Chap. 57, Laws of 1784.) The same kind of legislation has continued during the entire history of the State. “ From the earliest organization of the government the absolute control over persons and property, so far as the public health was concerned, was vested by boards or officers who exercised a summary jurisdiction over the subject, and who were not bound to wait the slow course of the law, and that juries have never been used in this class of cases. The governor, the mayor, health officers, under various names, were the persons intrusted with the execution of this important public function, and they were always empowered to act in a summary manner.” (Metropolitan Board of Health v. Heister, 37 N. Y. 661.)

“ In enforcing its quarantine regulations a State may detain immigrants from non-infected places who have traveled with others from infected localities.” (Milner’s Case, 57 Fed. Rep. 276.)

The execution of such laws may result in the deprivation of personal liberty and the destruction of property, but it by no means follows that any constitutional rights have been invaded or abridged within the meaning of the Constitution. Hue process of law, as the term is used in that instrument, requires only conformity to the rules and methods of free government and the omission to exercise powers interdicted by the Constitution or delegated to the other great departments of government. The Constitution does not guarantee the inviolability of the right to trial by jury in all cases, but only in “ all cases In which it has heretofore been used.” “ In questions relating to the public health, where the public interests required action to be taken, a jury had not been the ordinary tribunal to determine such questions prior to the Constitution of 1846.” (Board of Health v. Heister, supra.)

In the same case it was held: Health officers intrusted with the important function of executing the laws enacted for the protection of public health were always empowered to act in a summary manner. This principle long antedates the Constitution, and, being a law of the land at the time the Constitution was adopted, the Legist lature has continued to apply it to the enactment of statutes conferring this summary jurisdiction, and the courts have repeatedly affirmed this power in the Legislature. • The law of the land is due process of law. (Curtis, J., in Murrays’ Lessee v. Hob. L. & Imp. Co., 18 How. [U. S.] 276.)

“ If the statute in question was within the power of the Legislature to enact, the proceedings against the relator were .due process of law.' He was imprisoned by virtue of pre-existing law, informed of the charge made against him and was heard in person and by counsel in his defense. The proceedings need not be according to the course of the common law.” (Rapallo, J., in People ex rel. McDonald v. Keeler, 99 N. Y. 479 ; Happy v. Mosher, 48 id. 313 ; People ex rel. Witherbee v. Supervisors, 70 id. 228.)

The facts stated in the proclamation, that there was “great and imminent peril to the public health of the City of Brooklyn by reason of impending pestilence from the further spread of the disease,” standing uncontradicted, required the board of health to guard against the introduction of that disease by the exercise of proper and. vigilant medical inspection and control of all persons and things arriving in the city from infected places, or which, from any cause, were liable to communicate contagion. It became the duty of the board, under section 24 quoted above, to isolate all persons and things infected with or exposed to smallpox. These relators fell under the control of the board of health; they came to the city from infected places, and they were liable to communicate contagion; they were, therefore, proper subjects for isolation, and they were quarantined and detained in their premises. That isolation and detention was clearly within the scope of the powers and duties of the board, and that is all it did. The board did not require the relators to be vaccinated, and that seems to be the error into which the relators have fallen. They seem to assume that the board of health intended to compel them to be vaccinated, but the acts of the board admit of no such construction. Tlieré was neither coercion nor compulsion. They were isolated and deprived of their freedom because they had been exposed to smallpox and were liable to be seized therewith, and, by communication ivith others, to spread the disease. That was a legitimate exercise of the power and authority vested in the board by statute, and it was unnecessary to prescribe any conditions upon which the relators could terminate their isolation; that it was done entirely for their benefit and for no other purpose. If they availed themselves of the privileges tendered to them their acceptance would terminate their quarantine and their refusal would leave them in isolation until July 1, 1894, the time mentioned in the mayor’s proclamation. They refused the condition and instituted this proceeding. The prevention of smallpox is of such paramount importance as to justify all reasonable means for its accomplishment. In the age of the world in which we live, security from the -awful pestilence of smallpox, by reason of the practice of vaccination as a preventative, is imperative; its efficacy has been recognized by physicians of all schools for nearly a century. Dr. Jenner, its discoverer, was immortalized by its introduction. Yaccination was accepted and practiced by the entire civilized world within six years from the time of its first discovery, and it has been in universal use from that time until the present. It is stated in the return, and in the statement is uncontradicted, that it is a well-established scientific fact that vaccination is a preventive of smallpox in the person vaccinated, and it has been for many years demonstrated that thorough vaccination of persons in crowded centers is indispensable to the prevention of epidemic smallpox.

This statement as we have narrated is in accord with the advanced thought of the age in which we live, and it receives our concurrence, "We have decided at the present term of this court that vaccination may be required as a condition precedent to the admission of children to the common schools of the city of Brooklyn.

The propriety and wisdom of the course pursued by the board is beyond criticism. Its acts have all been within the lines of statutory authority, and they have been discreet and have acted in evident good faith in the presence of an impending pestilential danger.

The order should be reversed, with ten dollars costs and disbursements.

Pratt, J., concurred; Cullen, J., not voting.

■Order reversed, with ten dollars costs and disbursements.

       Or title 12.— [Rep.


author: Cullen, J.:

text:
    Jirah I. Foote and Another, as Executors and Trustees, etc., of Horatio N. Otis, Deceased, Appellants and Respondents, v. Lucy F. Bruggerhof and Others, Respondents and Appellants.

      Election, to take the land, by beneficia/i'ies entitled to the proceeds of real estate — when a conveyance by the trustees cannot be compelled — repeated suits for instruction by testamentary trustees.

    When beneficiaries are immediately entitled to the proceeds of real estate they can elect to take the real estate itself in lieu of the proceeds, but where the real estate is held in trust during the life of the beneficiaries, and none of them have a legal estate in their respective shares thereof, except interests in remainder after their respective deaths (unless the trustees should sooner terminate the trust), the beneficiaries have no right to compel the trustees to convey to them ' the real estate which is the subject of the trust.
    Testamentary trustees cannot bring repeated suits for instructions as to their duties and the determination of their legal rights, unless good reason be shown therefor.
    'Cross-appeals by tlie plaintiffs, Jirah I. Foote and another, as executors and trustees, etc., of Horatio N. Otis, deceased, and by the defendants, Lucy F. Bruggerhof and others, from portions of a judgment of the Supreme Court, entered in the office of the clerk of the county of "Westchester on the 19th day of October, 1894, upon the decision of the court, rendered after a trial at the Westchester Special Term, adjudging that the plaintiffs convey certain real estate to the defendants, and dismissing the defendants’ application for other relief.

      John J. Beattie and Charles J. McBurney, for the plaintiffs.

      John U. Marm and BaVph E. Prime, for the defendants.
   Cullen, J.:

There has been and still is another litigation between these parties in this court pending in the city and county of New York. An appeal from an interlocutory judgment in that case was taken to the General Term of the first department. In the report of the decision on that appeal (66 Hun, 406) there is so full a statement of the controvers3 between the parties and the facts out of which’ the controversy sprang as to require us to state now only the particular points involved in this action. After the decision of the General Term in the New York action the plaintiffs threatened to sell a piece of the testator’s real estate in Yonkers known as the homestead. The defendants forbade the sale, claiming that they had the right to elect to receive the property in land. The plaintiffs then brought this action asking for a judgment declaring their rights and construing the will in this respect. The defendants answered, counterclaiming, first, a conveyance of the land from the trustees, and, second, the removal of the ¡plaintiffs as trustees on. account of theii alleged misconduct. The Special Term rendered judgment directing the plaintiffs to convey the homestead to the defendants, and dismissed the second counterclaim on the ground of the pendency of the action in the county of New York. From that judgment both parties have appealed.

We think that the learned trial court erred in directing a conveyance of the homestead to the defendants. The general principle that when benéficiaries are immediately entitled to the proceeds of real estate they can elect to take the real estate itself in lieu of the proceeds is unquestionable. (Hetzel v. Barber, 69 N. Y. 1; Garvey v. McDevitt, 72 id. 563; Prentice v. Janssen, 79 id. 478.) But in the former action the court decided that under the codicil each share of the estate was held in trust dipring the life of the beneficiary, terminable at an¡r time at the election of the trustees. By that decision we are concluded. Under the decision none of the defendants, except Lucy F. Bruggerhof, as administratrix of Bi’adford Otis, deceased, took any legal estate in his share except a remainder after his own decease, unless the trustees should sooner terminate the trust. It follows that none of the defendants, with the exception named, would, in case of a sale of the homestead, have any right to the proceeds of the sale, and that, hence, the rule cited has no application. The effect of the judgment of the Special Term is to abrogate as to this real estate the trust which the General Term of the first department adjudged to exist.

The decision of the trial court, that the removal of the plaintiffs as trustees must be sought in a prior action pending in New York, seems justified by authority. (Groshon v. Lyon, 16 Barb. 461, affg. 2 Edm. Cas. 321.)

But we are of opinion that on the conceded facts the trial court should have dismissed the complaint. The rule invoked by the plaintiffs as a bar to defendants’ counterclaim for their removal as trustees is equally applicable to their own claim. Every argument that can be adduced to maintain the proposition that the defendants must seek relief in the. first proceeding wherein it is competent to grant it, applies with increased force to the parties who are the plaintiffs in and movers of both actions. The very ground upon which it was held by the General Term of the first department that the action then before it would be entertained by the court instead of remitting the matter to the surrogate, was that the action sought construction of the legal effect of the codicil. The plaintiffs were bound in that suit to obtain a complete determination of the questions sought to be here adjudicated. It cannot be that, trustees can bring repeated suits for instructions as to their duties and the determination of their legal rights unless-good reason therefor be shown. Nor could the trustees have suffered through any error into which they might have fallen on the questions. If they had sold the homestead and the purchasers had taken title they would merely have had to account for the proceeds. There could have been no liability to the beneficiaries except for misconduct. The suit was, therefore, unnecessary.

The judgment appealed from should be reversed and the complaint dismissed, with costs of trial against the plaintiffs, but without costs of the appeal, which was necessary to avoid the erroneous judgment against them.

Brown, P. J., and Pratt, J., concurred.

Judgment reversed and complaint dismissed, with costs of the action against the plaintiffs personally, but without costs of appeal.


author: Cullen, J. :

text:
    In the Matter of the Application of Wilhelmina Deckelmann and Others, Respondents, for an Order Authorizing and Requiring John H. Braunsdorf, Appellant, as Trustee, etc., to Make Repairs to a Building of which he is Trustee, etc.

      Repairs to real estate forming part of the corpus of a trust fund — expense of making, how chcorgeable as between life tenant and remainderman.

    As a rule, tlie expense of making repairs to real estate, which forms the coipus of a trust fund, necessary to put it in a lenantable condition, must be borne by the life tenant, and such expense cannot be charged against the remaindermen; but if the life tenant has not permitted the property to become out of repair, and the trustee receives it in an untenantable condition, permanent repairs thereto may be made at the expense of the remaindermen.
    Appeal by the defendant, John IT. Braunsdorf, as trustee, etc., from an order of the Supreme Court, made at the Kings County Special Term, and entered in the office of the clerk of the county of Rockland on the 31st day of August, 1894, directing the said trustee to make, at the expense of the remaindermen, certain repairs to premises devised to him in trust for the plaintiff.

      Iien/ry B. Twomlbly, for the appellant.

      I. Newton Williams, for the respondents.
   Cullen, J. :

The appellant is trustee under the will of his father, Julius Braunsdorf. The trust is substantially to hold a share of the testator’s estate during the life of his daughter, the income to be paid to her during life, and upon her decease the share to go to her children or descendants. On the death of the testator’s widow, the appellant received as part of the corpus of the trust a dwelling house and a sum of money on deposit in the savings bank. At the time the dwelling house was allotted to the trustee it was so far out of rejiair as to be untenantable. The life tenant demanded that the dwelling should be kept tenantable at the expense of the principal of the trust, On the failure of the trustee to accede to her demand she applied to the court for an order directing him to make such repairs. From an order granting that application this appeal is taken.

The material facts are not in dispute, but the appellant contends that repairs and improvements cannot be made at the expense of the remainderman, but must be borne by the life tenant. That such is the general rule is unquestionable, and it may be conceded that there is authority for the claim that the rule is invariable. (Perry on Trusts, 552.)

But there is now a tendency to limit the application of the rule stated. In the recently decided case of Stevens v. Melcher (80 Hun, 514) it was held that certain permanent repairs on the trust realty should be charged to the corpus of the trust, not to the equitable life tenant. In that case Judge Parker reviews at length the authorities on the question. In both the reasoning and conclusion of Judge Parker we concur.

The principle that the life tenant should bear the repairs, taxes and interest on incumbrances is as a general rule entirely just and equitable. All that the life tenant is entitled to is the income. The real income is only the net return of the property above its annual charges. If the property is not kept in repair the income is apparently increased, but only at the expense of the capital or corpus. So also, unless there is authority given the trustee by the will to invest in land, the corpus of the estate should not be expended to erect new buildings or make substantial alterations in improvements on the lands. That is changing the character of the trust estate. But there is an entire difference between such a case and an expenditure to make not a new thing, but the thing received available and preserve it from destruction and decay. Here the life tenant has not permitted the property to become out of repair, but the trustee has received it in an untenantable condition. If the property had come to the trustee burdened with taxes or assessments he would have been compelled to discharge them, and a mortgage of the trust estate to raise funds for the purpose would have been valid even before the amendment of the Revised Statutes in this respect. (U. S. Trust Co. v. Roche, 116 N. Y. 120.)

The general rule has also its exception in the case of an assessment for a public improvement. It is not to be borne wholly by the life tenant, but to be apportioned between the life tenant and the remainderman. In the will in this case there is no direction as ■ to how the part of the trust estate that is in money shall be invested. In applying part of it to the preservation of the realty we, therefore, contravene no direction of the testator’s. We think, therefore, that there was a proper case made for the direction given by the court.

The appellant now raises the objection that the infant remainder-men were not properly before the court and that the order made does not conclude them and protect himself. This objection is valid, but it does not seem to have been taken at the Special Term. If the appellant now desires the protection of an order concluding the infants he may move to vacate the order ■ appealed from and make, the infants parties to this proceeding.

Order appealed from should be affirmed, without costs, and with leave to appellant to move to vacate such order and bring in the infants as parties.

Pratt and Dykman, JJ., concurred.

Order affirmed, without costs, with leave to the appellant to move to vacate such order and bring in the infants as parties.


author: Pratt, J.:

text:
    Joseph Newman, Appellant and Respondent, v. Ephraim E. Levy, Respondent and Appellant; John Lanzer, Respondent; Philip Sehring and Others, Defendants. Joseph Newman, Appellant and Respondent, v. Ephraim B. Levy, Respondent and Appellant; John Lanzer, Respondent; Philip Sehring and Others, Defendants.
    No. 1.
    No. 2.

      Mechanic's lien — payment by an owner upon the order of a contractor — when it has precedence over the lien of a sub-contractor.

    The payment by an owner of real property, of an order drawn upon him by a contractor in favor of a third person, if made in good faith before the service of notice upon the owner of a sub-contractor’s lien, and before the owner has any knowledge, in fact, of such lien, takes precedence over the lien of the subcontractor, although at the time of such payment the lien of the sub-contractor had been filed.
    Cross-appeals by the plaintiff, Joseph Newman, and by the defendant Ephraim B. Levy, the owner of certain premises, from a judgment of the Supreme Court in action No. 2 in favor of the defendant John Lanzer, for his claim and interest, entered in the office of the clerk of the county of Westchester on the 8th day of August, 1894, upon the report of a referee, and also an appeal by the plaintiff, Joseph Newman, from a judgment of the Supreme Court in action No. 1 in favor'of the defendants, dismissing the plaintiff’s complaint, entered in the office of the clerk of the county of Westchester on the 26th day of July, 1894, upon the report of a referee.
    The actions were brought to foreclose certain'mechanics’ liens filed by sub-contractors, of which filing notice was given to the owner within ten days after the filing thereof.

      Milo J. White, for the plaintiff, appellant.

      Seward Baker, for the defendant, appellant.

      Dwffey & Kiernam,, for the defendant, respondent.
   Pratt, J.:

The mooted question in these two cases seems to be whether an order on Levy, the owner, given by Seining, the contractor, in favor of J. A. and E. J. Wolff, should take precedence of a lien of Lanzer, a subcontractor, and should, I think, be decided in the affirmative on the ground that the payment of the order was made in good faith and for a valuable consideration before any service of notice of Lanzer’s lien upon the owner Levy, and in fact before he had any knowledge that there was a lien. (Lauer v. Dunn, 115 N. Y. 405.)

The statute on this point is specifically worded, and after such service such owner or the person in interest shall not be protected in any payment made to such contractor or other claimant.” (Chap. 842, Laws of 1885, § 4.) Hence it appears that service of notice of lien is necessary to fix the rights of the lienor as against the owner or person in interest. In Kenney v. Apgar (93 N. Y. 541) it would appear that, although the service of the notice of lien is not necessary to the validity of the lien, it is necessary to prevent the payment by the owner to the contractor after the filing of the notice of lien to the prejudice of the lienor, and acts as a protection to the owner against his contractor’s fraud. If such notice is not served, or the owner informed of the lien, as in Kelly v. Bloomingdale (139 N. Y. 343), all payments, acceptances, or other payments or advances, hold good as against the lienor. McCorkle v. Herrman (117 N. Y. 303) holds principally that the lienor may subject the debt to a lien by filing his notice of lien and taking the other steps prescribed in this act. It also holds that the filing of á notice of lien creates a lien, but, as the circumstances of the case were different from the present case, and the point as to service of notice of lien upon the owner to prevent any further payments to his contractor did not come up, it can hardly be held an adjudication on the case herein. In Kelly v. Bloomingdale there was sufficient, although not technical, notice within the statute given to the owner or party in interest, and throughout there was a presumption of fraud on the part of the party owning, sufficient to show that the owner sought to avoid the'lien by collusively paying his contractor when he was fully aware of the lien.

The time prescribed by the statute for the service of the notice of lien on the owner or party in interest is ten days, and if such notice is not served within that time, the owner or party in interest is protected in any payment he may make to his contractor until the next steps provided by the statute are taken, i. e., service of summons to foreclose the lien. Now, if service of such notice is necessary within ten days, and from the decisions it has been so held that this notice was necessary for the protection of the owner or party in interest against paying his contractor or any other party claimant, it is unjiist to so construe the statute that an owner acting in good faith, and without notice, should be held to pay not only what he owed his contractor, but also whatever any lienor claims against said contractor, thus forcing him virtually to pay twice for his houses. In fact, the lienor, Lanzer, seeks to abrogate a specific provision of the statute, although he was very careful to try to carry it out by serving a notice of lien upon the owner Levy, and when he found that Levy had paid or contracted to pay the Wolffs what has been allowed by all parties to be an assignment^.??*)? tanto of all funds in the owner’s hands due the contractor at the time, he took steps to push his whole lien upon the owner on the ground that the payment to Wolff was subsequent to* his lien and consequently void as against him, holding that the filing,of his notice of lien was sufficient notice. This statute was not enacted to be technically abused in the obligations imposed on the lienor, and under it the o wner has some rights, one of them being service of the notice of lien, which fact Lanzer has acknowledged by serving Levy, and now he tries to set aside his own act as unnecessary.

The citations in this case bear only on the particular points set forth in the cases to which they relate, and none bear upon the points in issue herein sufficiently to be conclusive in this case.

I think, therefore, that the payment of the order on Levy given by Sehring, his contractor, in favor of the Wolffs, is good and valid, and that the balance that Levy now acknowledges he owes Sehring, $821.87, should be the extent of Lanzer’s lien. I also think, on principles of equity, that all the lienors should be awarded judgments against Sehring for the balance due them as sub-contractors and uncollected, with interest to date; also that no costs should be allowed against Levy except disbursements and costs up to the offer of judgment. The plaintiffs in both the actions should have been granted judgments against the contractor Sehring.

We think as between Lanzer- and the other defendants the findings of fact and conclusions of law are correct, as his lien was prior in point of time and the description of the premises was sufficient.

This conclusion is applicable to action No. 2, and the other cases depending upon the result therein by implication. The judgment in that action is reversed and a new trial granted, costs to abide event.

In action No. 1, the only appellant being the plaintiff, and the only point made being that he should have been awarded a judgment against the contractor, the judgment is affirmed, with costs. The contractor did not appear in the action and there was no issue before the referee as to him. If plaintiff desires such a judgment he may apply for it at any time at Special Term.

Brown, P. L, concurred.

Judgment in action No. 1 affirmed, with costs. In action No. 2 judgment-reversed and new trial granted, costs to abide event.


author: Brown, P. J.: Pratt, J.:

text:
    John Hutchinson, Respondent, v. Ann Hutchinson, Appellant.

      Fnist — cannot be proved by parol under the Statute of Frauds — trusts a/rising by act or operation of law — oral agreement to convey real estate, void.

    Under the Statute of Frauds a trust may be proved by any writing subscribed by the trustee, but it cannot be proved by parol evidence.
    The term “by act or operation of law,” as used in the Statute of Frauds in reference to trusts, aside from resulting trusts and trusts declared pursuant to settled rules of equity applied to the presumed intention of parties, has reference to trusts ex maleficio, where the court proceeds upon the proof of fraud and enforces agreements, notwithstanding the statute; but the mere breach of an oral agreement to convey an interest in land is not such a fraud as will authorize tlie interference of the courts.
    A parol trust in reference to land or a parol agreement to reconvey land to a person at his request, in the absence of fraud, is void under the Statute of Frauds and not enforcible in equity.
    Appeal by the defendant, Ann TIutcliinson, from a judgment of the Supreme Court in favor of the,plaintiff, entered in the office of the clerk of the county of Westchester on the 2d day of June, 1894, upon the decision of the court rendered after a trial at the Westchester Special Term.

      Cornelius E. Kene, for the appellant.

      Martín J. Keogh, for the respondent.
   Brown, P. J.:

The judgment appealed from in this action has adjudged that a certain deed dated January 13. 1871, executed by the plaintiff to the defendant, was not an absolute conveyance of the land therein, described, but that the same was accepted and received by the defendant in trust for the plaintiff and for his use and benefit.

It further adjudged that the plaintiff and defendant were tenants in common of said premises in equal proportions, and that the defendant should, within five days after the entry of the judgment, convey to the plaintiff an equal, undivided one-half of the premises described in the complaint, and that she should forthwith account to the plaintiff for all ’rents and income received by her from said property. It awarded other relief, which is not necessary to be stated or referred to.

Tlie facts upon which the judgment is based, as they have been determined by the trial court, are as follows:

Prior to January 13, 1811, the plaintiff and defendant, who are brother and sister, were tenants in common of the real estate described in the complaint. On that day, by a bargain and sale deed, expressing a consideration of one dollar, the plaintiff conveyed his interest in the land, consisting of an undivided one-half thereof, to the defendant.

The plaintiff’s testimony as to the transaction, which resulted in the execution and delivery of the deed, was, in substance, that after the title was taken in both their names he and the defendant entered into possession.

Shortly thereafter the defendant said to him that it was not necessary to have both names in the deed, that one was sufficient, and he said he was satisfied to have the property put in her name so long as he got his share; that she said he would get his share, and he accordingly went to a lawyer’s office with defendant and executed the deed, and that he understood that his title was the same after as before the conveyance, and that it did not affect his ownership at all.

The court found the facts to be that the deed was signed by the plaintiff and delivered to and accepted by defendant upon the distinct agreement between the plaintiff and defendant that it would in no way affect or destroy plaintiff’s interest in the property, and that the deed should not be construed as vesting the title absolutely in the defendant, but that she was to hold the same for the joint use and benefit of the parties.

The appellant has discussed upon his brief very fully the proposition that neither the allegations of the complaint nor the testimony of the plaintiff was sufficient to establish such a fraud or misrepresentation as would justify a court of equity in setting aside the conveyance. But that element is eliminated from the case by the concession of the respondent in his first point,that “No fraud is charged against the defendant and appellant in the procuring of respondent’s signature to the deed.”

Neither does the case present those elements usual in constructive or implied frauds. There was no fiduciary relation between the parties. They did not occupy .relations to each other where the defendant naturally exercised any influence over the plaintiff. She owed no duty to Mm whatever. The parties were laboring people of little education or information. The court has found as a fact that the defendant could neither read nor write, but that is not found to be the fact with reference to the plaintiff.

The evidence would not permit,the conclusion that the defendant had overreached the plaintiff and taken any undue advantage of him so as to charge her as a trustee ex maleficio and impress upon the land a trust by reason of constructive fraud.

The plaintiff, at the time of the execution of the deed, was about forty-two years of age, and there is nothing in the evidence to indicate that he was not as fully informed as to his rights and fully as able to protect them as the defendant.

The case does not present a mutual mistake or misapprehension of the respective rights of the parties. The plaintiff understood the transaction perfectly.

He intended to convey his interest in the land to the defendant, and he relied for his protection upon the verbal agreement to hold it in trust for him.

Such being the case presented the judgment cannot be sustained.

The Statute of Frauds (R. S. [8th ed.] p. 2589, § 6) provided that “ no estate or interest in lands, * * * nor any trust or power, over or concerning lands, or in any manner relating thereto, shall hereafter be created * * * unless by act or operation of law, or by a deed or conveyance in writing subscribed by the party, creating, granting, assigning, surrendering or declaring the same, or by his lawful agent thereunto authorized by writing.”

Section Y provides that the preceding section shall not be construed “ to prevent any declaration of trust from being proved by any writing subscribed by the party declaring the same.”

Under this statute a trust may be proved by any writing subscribed by the trustee, blit it cannot be proven by parol.

The reported cases where it has been attempted to establish a trust by parol evidence are numerous, but the decisions are uniform that the statute'cannot thus be set aside. (Cook v. Barr, 44 N. Y. 156 ; Levy v. Brush, 45 id. 589 ; Wheeler v. Beynolds, 66 id. 227 ; Hutchins v. Hutchins, 98 id. 56; Hurst v. Harper, 14 Hun, 280; Hubbard v. Sharp, 11 N. Y. St. Repr. 802; Bauman v. Holzhausen, 26 Hun, 505; Gould v. Gould, 51 id. 9.)

The statute excepts from its operation trusts arising “by act or operation of law.” Without referring to adjudged cases for the meaning of these words, it may be said in a general way that, aside from resulting trusts and trusts declared pursuant to settled rules of equity applied to the presumed intention of parties, the term has reference to trusts ex maleficio, where the court proceeds upon the proof of fraud, and enforces. agreements notwithstanding the statute. But a mere breach of an oral agreement to convey an interest in land is not such a fraud as will authorize the court to interfere. (Wood v. Rabe, 96 N. Y. 414.)

The testimony of the plaintiff may be construed to create a parol trust in the land for his benefit, or a parol agreement to reconvey the land to him at liis request.

In either view the contract, not being in writing, was within the Statute of Frauds and void.

The Statute of Frauds was not specifically pleaded as a defense. The answer, however, alleged that defendant had an absolute title to the land under the deed from the plaintiff, and that the facts set forth in the complaint did not constitute a cause of action, and upon the trial, before any testimony was given, the defeiidant moved for judgment upon the pleadings. The point we have considered, and upon which our decision rests, is sufficiently presented by the exception to the denial of that motion.

The judgment must be reversed, and there should be a new trial.

Pratt, J.:

This is an appeal from a decree in favor of the plaintiff declaring that a deed given by the plaintiff, dated January 13, 1871, of one undivided half interest in certain real estate in Westchester county,is void, etc. The action was commended on the 13th of January, 1894.

The defendant is a sister of the plaintiff. It appears that on the 7th of October, 1870, they purchased the property at a sheriff’s sale at the price of $850, and took a deed in their joint names, and each contributed portions of the purchase money, the plaintiff considerably more than the defendant, and that they joined in a mortgage for $500 to pay the balance of the purchase money, which the plaintiff afterwards paid off and took an assignment of the mortgage, which he now holds and upon which he commenced a foreclosure suit that is now pending and undetermined. The mortgage was paid off prior to May 28, 1873, and the assignment recorded on that day.

The plaintiff alleges in his complaint “ that from and after the said seventh day of October, 1870, and up to the 13th day of January, 1871, the defendant continually and persistently represented to this plaintiff, who was, and is, an illiterate man and entirely destitute of business knowledge, experience or ability, that it was annoying and unnecessary that both names should appear on the tax books or in the deed, and that it was only the occasion of extra annoyance * * * as she could manage, care for and protect their interests more easily than this plaintiff, continually and persistently urged this jolaintiff to substitute her name in the deed in the place and stead of both their said names, on each occasion representing to this plaintiff that his interest and share in said property would not be altered, affected, relinquished or destroyed thereby.”

He also alleges that defendant has collected all the rents of said property; that he never intended to convey said property; that defendant has not kept her promise, but now claims title to the whole property, and denies the plaintiff has any title or interest in said property, and that he has always retained joint possession of said property with the plaintiff. No fraud is charged or proved on the part of the defendant to induce plaintiff to sign the deed. The defendant denies the whole story of the plaintiff as to the cause of his making the deed.

There' can be no doubt from the evidence that plaintiff signed the deed well knowing that the effect of it was to put the whole title in the name of the defendant for her to manage, pay taxes and take •entire charge of the property as she had continued to' do for more than twenty years previous to the suit. This is also evident from the fact that when he paid off the mortgage he took an assignment of it, and on the 3d of November, 1893, commenced an action of foreclosure upon it, naming Ann Hutchinson as sole defendant.

The question is, can a deed understandingly and voluntarily given after such a lapse • of time be wiped out of existence by parol evidence such as is disclosed in this case ? The claim is that the plaintiff should retain his interest in the land notwithstanding the deed ; to prove this it was necessary to vary by parol the terms of the deed. It is to be observed that the decree here is not for a specific performance of a promise made by defendant, but a decree that the deed was void, without a particle of evidence that it was obtained by deceit, fraud or duress. If it is claimed that the defendant received it in trust for the plaintiff, the answer to that is that a trust in lands cannot be created without ati instrument in writing. If it is assumed that the deed was given upon a promise which has not been kept, the Statute of Limitations has long since barred a . recovery. This is a stale demand that ought not to be encouraged by a court of equity. (Am. & Eng. Ency. of Law, 534, and cases there cited ; Story’s Eq. Juris. § 1520.)

In no view of the case can the action be maintained. Judgment reversed and new trial granted.

Dykman, J., not sitting.

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


author: Pratt, J.: J. F. Barnard,

text:
    Robert J. Hayden, Respondent, v. Thomas C. Platt and Another, as Receivers of the New York and New England Railroad Company, Appellants.

      Duty of a railroad company to provide safe appliances.

    A railroad company is bound to provide reasonably safe appliances for its employees, and the employees have a right to act in reliance upon the performance of this duty by the employer.
    Appeal by the defendants, Thomas 0. Platt and another, as receivers of'the New York and New England 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 Dutchess on the 25th day of September, 1894, upon the report of a referee.

      James R. 8oley, for the appellants.

      Ward <& Morsehauser, for the respondent.
   Pratt, J.:

The elaborate opinion filed by the referee so completely covers the facts as to render further discussion unnecessary.

We do not see that the plaintiff was guilty of contributory negligence, and the amount of damages is not excessive.

The judgment should be affirmed.

Cullen and Dykman, JJ., concurred.

Judgment affirmed, with costs.

The opinion of the referee was as follows :

J. F. Barnard,

Beferee :

On the 11th March, 1894, the plaintiff was a brakeman on the defendants’ road. The train on which he ivas employed left Hopewell on this morning and went east. Just as the train readied the top of the hill near Beynoldsville it became necessary to cut off the engine which was pushing in the rear and to continue on without it. A brakeman left the caboose car, which was the rear car of the regular train, and went on top of the cars, and presumably set the brakes lightly, so as to meet a down grade to Beynoldsville, where a switch was to be thrown, so as to make a fly of the caboose. The plaintiff was a brakeman of the rear end; this position made him a flagman as well. He was stationed on the pushing engine; his duty was to cut off the engine and pass on to the regular train and signal the fact of the cutoff to the engineer. When he cut off the pusher engine and passed to the caboose and to the box car ahead of it, he saw that the brake was set so hard on the box car as to stop entirely the revolution of the wheels, which was against the rules of the company under the circumstances. Fie got rip on the box car and proceeded to loosen the brake. This brake was of the kind commonly used on freight cars. There was a brake staff, and the brake was compressed upon the wheel by a chain wound around the brake staff, which was of iron and moved by a round lever on the top of it, and held in place by a ratchet and dog. The plaintiff put his foot so as to loosen the dog from the ratchet and applied the lever. The iron wheel at the first touch flew from its place. It was necessary for the plaintiff to tighten the brake a little to release the dog, and the sudden failure of the brakp wheel lever threw the plaintiff from the train to the ground. He struck upon his back. The train was running from fifteen to eighteen miles an hour. The accident was caused by the absence of a nut from the top of the brake staff which held the lever fast to it. The brake in this connection was unfit for the purposes and dangerous to the brakeman who used it. The company was bound to provide reasonably safe appliances for the purpose of the employment. The inspection proven at Hopewell was of no use. A man walked up and down on the ground, and, while he says he could see the washers under the brake lever, he does not say he could see the nut on top, and manifestly he could not see it. The inspection was incomplete and his inspection useless. The accident could not have happened if he had done his duty with intelligence. Another inspection was proven at Newburgh on the day befoi'e. The object of this' inspection was to see if repairs were needed, so that they could be made in the Erie Company’s repair shops before the car was transferred to the defendant’s road. This inspector went on top of the cars and found, he says, everything right. A well-secured nut on the brake staff would not have given away in the few miles’ run between this inspection and the accident. It did give way, not by violent use, and this fact must be taken into consideration in determining the credit to be given to this inspector at Newburgli. The inspection was either not made, or made so carelessly as to be of no use. It could not have been made under the proof. This inspector only testifies to a custom, and not from remembrance of this particular car on the train.

The plaintiff was guilty of no negligence on his part. He could reasonably rely upon the performance of the master’s duty. He was bound with the utmost vigilance to use his faculties to protect himself from danger, but this occasion was urgent, and the accident happened quite early in the morning of March 11, 1891. The brake lever was made for the purposes of such use as he put it to. The washer was on the topi of the brake staff. Tinder those circumstances the plaintiff was not guilty of negligence contributing in any way to the accident. The action is, therefore, made out, and- the plaintiff is entitled to recover his damages. The proof shows that he was confined to his sick room from the 11th of March to the 5th of April, 1891. He was then moved to his home on Long Island. He has not been able as yet to do any work. He made an effort to do some plain painting, but he could not stoop, and the effort hurt him so that he had to stop. He was well before the accident. He has night sweats, has pain in the back and through the hips. The injury was no greater than would be reasonably expected from the accident. A fatal result would not have been deemed unusual. The physicians differ as to the permanence of the injury, while there is' no difference as to the severity of it. Dr. Powell thinks a cure will take place, but it will take a long time to effect one. Dr. Wilson agrees with him. Dr. Sutton testifies to a great improvement, but that it will take a long time to cure the plaintiff, and he even expresses a doubt whether the injury is not a permanent one.

Drs. WanWyck and Conklin testify that-the injury is neither permanent nor will it jirobably be long continued; indeed, that the complete restoration -is now reached, or nearly so. Under this proof, I think that the improvement has been marked and steadily continued, but the evidence does not warrant a finding that the injury received will be permanent. It will still take a long time to reach a complete restoration.

I estimate the damages to plaintiff from the injury at $2,500, and order judgment for this amount against the defendants, with costs.


author: Pratt, J. :

text:
    In the Matter of the Petition of Alfred C. Chapin, Mayor of the City of Brooklyn, and Others, Respondents, Acting as a Commission under and in Pursuance of Section 12 of Title 12 of Chapter 583 of the Laws of 1888, as Amended by Chapter 245 of the Laws of 1891; Moritz Cohn and Another, Appellants.

      Certificate that a case contains all the evidence — when an appeal will not be dismissed by reason of the absence thereof— section 12 of title 12 of chapter 583 of 1888, as amended by chapter 245 of 1891— when the report of commissioners appointed thereunder will not be interfered with upon appeal — constitutionality of such acts.

    An appeal will not be dismissed, for the reason that no certificate is attached to the case stating that it contains all the evidence, when a statement is made that it contains all the material evidence upon ihe matters involved therein.
    Courts will not interfere with or set aside the reports of commissioners appointed in pursuance of section 12 of title 12 of chapter 583 of the Laws of 1888, as amended by chapter 245 of the Laws of 1891, except for some error of law or upon proof of fraud or some such glaring imperfection in the report, either of inadequacy or excessiveness, as shocks common sense and implies bias, prejudice, misconduct or want of judgment on the part of the commissioners.

      Chapter 583 oí the Laws of 1888, as amended by chapter 245 of the Laws of 1891, is constitutional.
    Appeal by Moritz Cohn and another from an order of the Supreme Court, made at the Kings County Special Term on the 11th day of November, 1893, as amended by an order made on the 9th day of December, 1893, and entered in the office of the clerk of the county of Kings, confirming the report of commissioners . appointed to ascertain and appraise the amount of damages, if any, done to any property or interest by reason of the occupation of the public hospitals in the town of Flatbusli, Kings county, pursuant to section 12 of title 12 of chapter .5 83 of the Laws of 1888, as amended by chapter 245 of the Laws of 1891, and also from the report of such commissioners.
    This proceeding was instituted and brought to ascertain and appraise the amount of damages to any property or interest therein by reason of the erection of hospitals in the town of Flatbush, Kings county, for the reception and treatment of persons suffering from infectious and contagious diseases under the provisions of section 12 of title 12 of chapter 583 of the Laws of 1888, as amended by chapter 245 of the Laws of 1891.

      Jeroloman c& Arrowsmith, for the appellants.

      Albert G. McDonald and Howard 0. Wood, for the respondents.
   Pratt, J. :

It is not necessary to discuss at length the motion made herein to dismiss the appeal, as the case is before the court, and may as well be examined. Neither will we notice the fact that no certificate is attached to the ease, that it contains all the evidence in view of the statement which is made, that it contains all the material evidence . upon the matter involved therein.

No error of law on the part of the commission seems to be raised, but the report is sought to be set aside upon the ground that the award of damages is too small and against the weight of evidence, and that the act under which the proceedings were instituted is unconstitutional.

As to the first, it is only necessary to suggest that the sworn statements of witnesses is not the only evidence in the proceedings.

The commissioners viewed the premises and arrived at their conclusions from such inspection as well as from the statements of witnesses. There was no refusal on the part of the commission to hear all the testimony brought forward by the appellants, and, so far as appears, it was duly considered. It is impossible for the court to say that the award is not adequate.

The practice is too well settled by a long line of decisions that the court will not interfere and set aside a report of such a commission except for some error of law, or upon proof of fraud or such glaring imperfection in the report, either of inadequacy or excessiveness as shocks common sense and implies bias, prejudice, misconduct or want of judgment on the part of the commission.

The case is bare of any proof to sustain the contention of the appellants that the award is in any respect illegal or that it is against the ■ weight of evidence. As to the unconstitutionality of the act of the Legislature under which the proceeding was taken, it is only necessary to say that the points of the appellants make no suggestion, except that the award was not large enough in amount to give them just compensation. The constitutionality of an act of the Legislature does not depend upon the amount of damages, but must be determined by an inspection of the act itself.

The report should be confirmed, with costs.

Brown, P. J., and Dykman, L, concurred.

Seport of commissioners affirmed, with costs.


text:
    William A. Pitt, Plaintiff, v. Arthur H. Amend, Defendant.

      Sale under a foreclosure by advertisement — no personal representatives of the deceased mortgagor.

    Upon the foreclosure of a mortgage by advertisement in 1866 there were no personal representatives of the deceased mortgagor upon whom could be served the statutory notice, and nothing was brought before the court showing any outstanding equity in the estate or in the heirs of such deceased, whose husband and co-mortgagor was served with such notice; all the other proceedings in the foreclosure were regular.

      Held, that the sale under the foreclosure would not be disturbed.

      Submission of a controversy upon an agreed statement of facts pursuant to section 1279 of the Code of Civil Procedure.

      McGuire, Low <& Coombs, for the plaintiff.

      Joseph H. Delaney, for the defendant. ;'
   Pratt, J.:

Foreclosure by advertisement in which the defendant purchaser refused title solely because of the alleged defect in the foreclosure in not giving notice of the sale to the “ personal representatives ” of the deceased mortgagor required by the statute (Chap. 346, Laws 1844).

The case as agreed upon shows that the mortgage was made by Patrick Connell and Mary Daly Connell, his wife, and that the notice of sale was served on Patrick Connell, but that Mary Daly Connell had died before the foreclosure, intestate. Whatever rights in the mortgaged premises Mary Daly Connell died seized and possessed of, passed to her heirs at law, and not to her personal representatives. No administration was ever had upon her estate, and there is nothing to show who her heirs were. In Low v. Purdy (2 Lans. 424) notice had been served upon the heirs, but not upon the personal representatives, and it was there held that such service was a nullity, and that “heirs” and “personal representatives” are two separate and distinct classes of persons, and that the statute prescribes service upon the personal representatives and not the heirs.

It would appear, then, that there were no personal representatives of Mary Daly Connell to serve with notice; her husband and co-mortgagor was served and all the other proceedings are confessedly regular.

The foreclosure was in 1866, and there is nothing before the court showing any outstanding equity in the estate or in the heirs of Mary Daly Connell to warrant disturbing the sale under this foreclosure-after so many years. (Anderson v. Austin, 34 Barb. 321; Cole v. Moffitt, 20 id. 18; Hubbell v. Sibley, 5 Lans. 51; King v. Duntz, 11 Barb. 191.)

The judgment should be for plaintiff.

Dykman, J., concurred.

Judgment for plaintiff on submitted case.,


text:
    Sylvester B. Outhouse, Respondent, v. Angeline Odell, as Executrix, etc., of Rachel Tompkins, Deceased, Appellant.

      Statutory reference under section 317 of the Gode of Procedure — right of a claimant to disbursements not affected by chap. 245 of 1880 or chap. 686 of 1893.
    The provisions of section 317 of the Code of Procedure were not repealed by chapter 245 of the Laws of 1880, and upon the reference of a disputed claim against an estate under the provisions thereof the'disbursements of the claimant may be still allowed, although no costs were granted by the decision. Chapter 686 of the Laws of 1893 has not changed the existing law.
    Appeal by the defendant, Angeline Odell, as executrix, etc., of Rachel Tompkins, deceased, from an order of the Supreme Court, made at the Orange Special Term and entered in the office of the clerk of the county of Westchester on the 20th day of September, 1894, affirming the taxation of the plaintiff’s disbursements as made by the clerk of the county of Westchester.
    Sylvester Outhouse presented a claim to the executrix of Rachel Tompkins, deceased, which was rejected and the claim was subsequently referred, and the referee found in favor of the claimant, but without costs. Thereafter the claimant presented to the clerk of Westchester county a bill for disbursements; objections were made thereto ; such objections were overruled by the clerk and the claimant’s disbursements were taxed.

      Wm. II. H. Ely, for the appellant.

      Smith Lent, for the respondent.
   Pratt, J.:

It is clear from an examination of the case of Larkins v. Maxon (103 N. Y. 680) that the provisions of the old Oode (§ 317) were not repealed by the Laws of 1880 (Chap. 245). At the time this decision was rendered sections 1835 and 1836 of the Code of Civil Procedure were in force and are now in force, and section 317 of the old Code is in force unless repealed by chapter 686 of Laws of 1893. The chapter last mentioned provides that on the entry of the order of reference' the proceeding shall become an action in the Supreme Court, and that the reference shall be governed on the question of costs by sections 1835 and 1836 of the Code of Civil Procedure.

We, therefore, see that sections 1835 and 1836 of the Code of Civil Procedure are not inconsistent with section 317 of the old Code, and that disbursements can be allowed where no costs are given by the decision.

A distinction between costs and disbursements seems to have been maintained ever since the passage of section 317 of the old Code. The law (Chap. 686, Laws of 1893) makes no reference to disbursements whatever ; therefore, there lias been no change' in the law in regard to disbursements since the decision in Larkins v. Maxon (supra). The law'of 1893, before referred to, besides making the proceeding an action in the Supreme Court, provided that the referee in allowing or withholding costs should be governed by sections 1835 and 1836 of the present Code, and, as we have already seen, those sections make no' reference to disbursements, and notwithstanding those provisions disbursements can be allowed.

It would be a remarkable construction to hold that the Legislature, by passing chapter 686 of the Laws of 1893, only intended to substitute a reference under the Revised Statutes for one under the Code, as they made no mention of disbursements in that statute. Ry not repealing section 317 of the old Code and making no allusions to the subject I think it a fair inference the Legislature intended to make no change in the existing law on that subject.

With some hesitation we feel constrained to affirm the order, with ten dollars costs and disbursements.

Dykman, J., concurred,- Brown, P. J., not sitting.

Order affirmed, with ten dollars costs and disbursements.


author: Brown, P. J.:

text:
    Thomas L. Vickers, Respondent, v. Sandford W. Battershall and Another, Appellants.

      Promissory note given as a collateral security — stipulation for forfeiture not enforceable —parol evidence, when admissible to vary a writing —judgment against an indorser of a note given as collateral security — no bar to proof of payment of the principal obligation.

    Upon the back of a promissory note, made by one Sandford W. Battershall, payable to the order of Thomas L. Yickers, was written the following:
    •
    “ T. L. Yickers holds as security for payment of this note at maturity a certain note made Ap. 25th — due one year from date, for three thousand dollars, signed by Jas. O’Brien, and endorsed by Anna S. Battershall to S. YJ. Batter-shall, upon which eleven hundred dollars has been paid to me, and in case this note is not paid at maturity, the said note of O’Brien shall belong to said Yickers, his heirs and assigns. Battershall has the privilege of paying this note any time before maturity and receiving O’Brien’s note back.
    “S. W. BATTERSHALL.”

      Held, that such stipulation did not have the effect to transfer the O’Brien note, absolutely, to Yickers, on default in the payment of the note to which it was collateral;
    That the O’Brien note was not transferred in payment of, but as collateral to, the note given by Sandford W. Battershall;
    That an equity of redemption attached to the note in Yickers’ hands, and nothing could destroy that equity except a judgment of foreclosure rendered by a court of competent jurisdiction;
    That the provision contained in the assignment of the O’Brien note, that in case of non-payment of Battershall’s note, it should “belong to said Yickers. his heirs and assigns,” did not change the character of that instrument. That it was a pledge or mortgage and ajways remained such, and its terms were not contradicted or varied by the parol evidence that the O’Brien note was held as collateral security for the payment of the note given by Sandford W. Battershall.
    Forfeitures are abolished under the laws of the State of New York, and the rule is firmly established that under every instrument given as security the borrower has the right to redeem upon the payment of the loan.
    The rule that parol evidence cannot be received to contradict or vary the terms of a written contract is not of universal application. It has many exceptions, one of which is to admit the evidence when it tends to show that a part only of an agreement was reduced to writing.
    The fact that a judgment has been recovered against Anna S. Battershall as indorser on the O’Brien note, which was paid by her, did not debar her from proving, in an action brought against her upon the promissory note as collateral security to which the O’Brien note was given, that the proceeds of such judgment were by the agreement of the plaintiff applicable to the payment of the - note in suit. If such agreement existed, the note in suit was eo instanti extinguished upon the payment of the judgment to the plaintiff.
    Appeal by the defendants, Sandford "W. Battershall 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 Kings on the 4th day of June, 1894, upon the verdict of a jury rendered by direction of the court after a trial at the Kings County Circuit.

      George P. Gordel, for the appellants.

      A. jSirms, Jr., for the respondent.
   Brown, P. J.:

This action was brought to recover upon a promissory note for $500, dated January 13,1881, made by the defendant Anna S. Battershall to the order of Sandford W. Battershall and by him indorsed to the plaintiff, and payable two months after date.

This note was given in renewal of a prior note for the same amount, which bore date September 10,1886, and matured on January 13, 1881. Both defendants pleaded payment, and this was claimed to arise from the following facts: On November 25,1886, the defendant Sandford ~W. Battershall was indebted to Spencer Trask & Co. in the sum of $522.59. That firm held as collateral a promissory note made by one James O’Brien, payable to the order of Anna S. Battershall and indorsed by her, upon which there was unpaid more than $2,000. The plaintiff, at the request of Sand-ford ~W. Battershall, paid the debt to Trask & Co., and received the O’Brien note, and Sandford executed and delivered to him his note bearing date November twenty-fifth for the amount paid to Trask, payable five months after date. Upon the back of this note was indorsed the following:

“ T. L. Vickers holds as security for payment of this note at maturity a certain note made Ap. 25th — due one year from date, for three thousand dollars, signed by Jas. O’Brien, and endorsed by Anna S. Battershall to S. ~W. Battershall, upon which eleven hundred dollars has been paid to me, and in case this note is not paid at maturity, tlie said note of O’Brien shall belong to said Vickers, his heirs and assigns. Battershall has the privilege of paying this note any time before maturity and receiving O’Brien’s note back.
“S. W. BATTERSHALL.”

The note given for the Trask debt was not paid, and Vickers thereafter sued Mrs. Battershall upon her indorsement on the O’Brien note, and collected from her thereon about $2,500.

Upon the trial of this action Sandford W. Battershall testified that the O’Brien note was delivered to the plaintiff not only as collateral to the note given for the Trask debt, but also to the note of which the note in suit was a renewal, and if this was the fact it followed that the note in suit was paid by the proceeds of the collection on the O’Brien note, and a surplus left which was due to the defendants or one of them.

At the close of the evidence the court, against the defendants’ objection and exception, struck out all the oral testimony of Sand-ford W. Battershall tending to show that the plaintiff held the O’Brien note as collateral to the note in suit, on the ground that it contradicted the agreement on the back of the note given for the Trask debt, and directed a verdict for the plaintiff.

If the ruling of the trial court can be sustained the result would be that plaintiff will have been permitted to recover and retain upwards of $8,000 in payment of a debt of a little over $1,000.

Wo are of the opinion that the court erred in striking from the case the oral testimony of Sandford W. Battershall, and that the judgment entered upon the verdict must be reversed. The stipulation which I have quoted above cannot be held to have the effect to transfer the O’Brien note absolutely to the plaintiff on default in the [payment of the note to which it was collateral. The O’Brien note was not transferred in payment of, but as collateral to, the note of November twenty-fifth. An equity of redemption attached to the note in the plaintiff’s hand, and nothing could destroy that equity except a judgment of foreclosure rendered bj a court of competent jurisdiction. Forfeitures are abolished under our law, and the rule is firmly established that under every instrument given as security the borrower has a right to redeem upon payment of the loan.

A leading case in this state upon this subject is Clark v. Henry (2 Cow. 324), wliich in its facts is very similar to the case at bar. There was an assignment of a mortgage by a debtor to his creditor absolute in form. In an action by the debtor to redeem the mortgage the defendant asserted an absolute title to the security. Upon deciding the case the chancellor said: “ There is no principle in Equity better settled than that every contract for the security of a debt by the conveyance of real estate is a mortgage, and all agreements of the parties tending to alter in any subsequent event the original nature of the mortgage and prevent the equity of redemption are void.”

Upon affirming the judgment the Court of Errors said : The right to redeem is carefully protected by Courts of Equity. They will 'not suffer an agreement to prevail that the estate shall become an absolute purchase in the mortgagee upon any event whatever. * * * There is no exception to the rule once a mortgage and always a mortgage.’ ”

In Peugh v. Davis (96 U. S. 332) the Supreme Court of the United States recently stated the rule to be that the right to redeem ■“ cannot be waived or abandoned by any stipiilation of the parties made at the time, even if embodied in the mortgage,” and the principiéis stated by Judge Story in his work on Equity Jurisprudence (§ 1019) as follows: So inseparable, indeed, is the equity of redemption from a mortgage that it cannot be disannexed even by an express agreement of the parties. If, therefore, it should be expressly stipulated that unless the money should be paid at a particular day or by or to a particular person the estate should become irredeemable, the stipulation would be utterly void.”

Under the application of this rule the provision contained in the assignment of the O’Brien note that, in case of non-payment of Battershall’s note, it should “ belong to said Tickers, his heirs and assigns,” did not change the character of that instrument. It was a pledge or mortgage, and always remained such, and its terms were not contradicted or varied in the least by parol evidence that the O’Brien note was held as collateral security for the payment of the note in suit. Evidence to that effect permitted the stipulation to stand and be enforced by the- plaintiff according to its terms, and had no other effect except to impress upon the surplus that might remain in Tickers’ hands a lien in his favor to secure payment of the note in suit. It contradicted nothing except the clause which apparently declared a forfeiture of tlie O’Brien note, but as that clause could not be enforced without an opportunity to redeem, it did not vary or change the legal character of the instrument.

• The rule that parol evidence cannot be received to contradict or vary the terms of a written contract is not of universal application, but has many exceptions, one of which is to admit the evidence when it tends to show that a part only of an agreement was reduced to writing. (Chapin v. Dobson, 78 N. Y. 74; Brigg v. Hilton, 99 id. 517 ; Routledge v. Worthington Co., 119 id. 592.)

The testimony of Battershall' was, therefore, admissible, and should not have been stricken out. If the jury had found that the O’Brien note was collateral to the note in suit, it would have followed, as a necessary conclusion, that the latter instrument was paid.

Mrs. Battershall is not estopped by the judgment against her on the O’Brien note from raising the defense of payment in this action. She was liable on the O’Brien note upon her contract of indorsement, and she alleged in her answer in this action, and testified on the trial, that she had no knowledge of the transaction with the plaintiff by which he acquired that note. It is not necessary to-determine on this appeal whether the judgment on the O’Brien note would estop her from recovering back any portion of the money paid thereon. She does not assert any such claim in her answer.

The fact of the recovery of the judgment on the O’Brien note, and the payment thereof, does not debar her from proving in this action that the proceeds of that judgment were, by plaintiff’s agreement, applicable to the payment of the note in suit. If that agreement existed then, upon the payment of the judgment to plaintiff, the note in suit was eo instanti extinguished.

Sandford W. Battershall, in his answer, claims to recover the surplus upon the O’Brien note remaining after the payment of the two notes held by the plaintiff, and if the fact is that he was the owner of the O’Brien note at the time of its transfer to the plaintiff, no reason is apparent why his claim is not well founded or why it may not be asserted as a counterclaim in this action.

He certainly is not estopped by the judgment against Mrs. Batter-shall, but holds his equity of redemption in the proceeds of the note the same as he did in the note itself.

The counterclaim, although, one cognizable by a court of equity, is properly pleaded in this action. (Code Civ. Proc. § 507.)

It does not, however, clearly appear in the testimony who owned the O’Brien note at the time of its transfer to plaintiff. On its face, title passed from Mrs. Battershall, its payee, to Trask & Co., and from that firm to the plaintiff. It may, however, have been the property of Sandford W. Battershall. The fact can be determined on a new trial.

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

Pratt and Dykman, JJ., concurred.

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


text:
    Wheeler & Wilson Manufacturing Company, Appellant, v. Joseph W. Elberson, Respondent.

      Principal estopped to deny the agent’s authority after accepting the benefits of a contract — appeal.

    A person who has accepted the benefits of a contract cannot be heard, upon the trial of an action brought to charge the other party thereto with liability thereunder, to question the authority of the agent who made the contract in his behalf; nor can the question, as to the authority of the agent to bind him thereby, be raised for the first time upon appeal.
    Appeal by the plaintiff, the Wheeler & Wilson Manufacturing Company, 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 4th day of October, 1894, upon the verdict of a jury rendered after a trial at the Suffolk Circuit, and also from an order entered in said clerk’s office on the 26th day of September, 1894, denying the plaintiff’s motion for a new trial made upon the minutes.

      Holden <& Allen, for the appellant.

      Thomas J. Ttiteh, Jr., for the respondent.
   Brown, P. J.:

This action was .brought to recover against the defendant as the maker of two promissory notes, also upon an account for merchandise sold.

The cause of action upon the account is admitted to be barred by the Statute of Limitations.

The notes were given to secure the payment of the purchase price of sewing machines, and one of them contained a jirovision that the title to the machines, for the payment of which it was given, should remain in the plaintiff (the vendor) until the notes were paid.

The defense was that prior to the maturity of the- notes, the defendant, being insolvent, entered into an agreement with the plaintiff whereby all the machines, together with certain shafting, transmitters and other property, were surrendered to the plaintiff in consideration of the cancellation of the notes. That the plaintiff took possession of the property and refused to surrender the notes.

Instead of -so doing, it credited upon them the value of the property received, and brought this action to recover the balance.

Upon the issue thus raised the jury found for the defendant.

The point is now made that the agent, who negotiated the agreement with the defendant, was without authority to bind the plaintiff to surrender the notes or cancel the debt. This point was not taken at the trial, and there was no request made to take the case from the jury or to instruct tliem upon the question of the agent’s authority. The question cannot be raised for the first time on appeal, and is not now available to the appellant.

The agreement, however, was supported by anrple consideration in the surrender of the machines before the maturity of the notes, and in the transfer of shafting and other jwoperty, of which the defendant had the absolute title. And the plaintiff, having accepted the benefits of the contract, cannot now be permitted to question the authority of the agent who made it.

The judgment must be affirmed, with costs.

Pratt and JDtkman, JJ., concurred.

Judgment and order affirmed, with costs.


text:
    In the Matter of the Application of Patrick H. Gaffney, Appellant, for a Writ of Mandamus Against Frank Squier, as Commissioner of the Department of Parks in the City of Brooklyn, Respondent.

      Honorably discharged soldier — reinstatement as a laborer in the park department of the city of Brooklyn — denied because of his laches.

    Although an honorably discharged Union soldier be wrongfully discharged by the commissioner of parks in the city of Brooklyn, if he neglects to make an appli- ■ cation for reinstatement until two years and nine months after the time of his discharge, his laches prevents his reinstatement.
    Appeal by the relator, Patrick H. Gaffney, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 26th day of November, 1894, denying the relator’s motion for a writ of mandamus.
    Patrick II. Gaffney applied for a writ of mandamus commanding Frank Squier, as commissioner of the department of parks in the city of Brooklyn, to restore him to his employment as a laborer employed in the said park department. The petition alleged that the relator was an honorably discharged Union soldier, and that he was wrongfully discharged from his employmant as a laborer in the park department of the city of Brooklyn.

      Sidney Williams and G. B. Van Wart, for the relator, appellant.

      Albert G. McDonald and Howard 0. Wood, for the respondent.
   Pratt, J.:

The relator herein slept upon his right too long to be entitled to’ the relief he seeks. This application is made two years and nine' months after the alleged time of discharge. Relator must bear the result of his own carelessness. His laohes prevents his reinstatement. (Shay v. Trustees Brooklyn Bridge, 39 N. Y. St. Repr. 856.) The Special Term of this court, affirmed by the General Term, held that the laohes of one year and six months rendered reinstatement impossible. (See, also, Matter of Wortman, 22 Abb. N. C. 143; People ex rel. Hayden v. City Court of Brooklyn, July 31, 1890.) I recommend affirmance.

Brown, R. J., and Dyicmmn, J., concurred.

Order affirmed, with costs.