text:
    John B. Bowen, as Assignee in Bankruptcy of the Estate, Property and Effects of Anna N. Dwight, a Bankrupt, Appellant, v. The Delaware, Lackawanna and Western Railroad Company, Respondent.

      Statute of Limitations— action by an assignee in bariloruptey to recover real estate — when ba/rred by section 5057 of the United States Revised Statutes.

    Upon, the trial of an action brought on July 23, 1888, by an assignee in bankruptcy, to recover the possession of certain real estate which passed to the assignee as such on September 10, 1878, it was shown that in September, 1880, a corporation claiming to have acquired title thereto, entered into the possession of 'such premises, and that on October 2, 1882, the defendant leased the property of the said corporation. The entry of such corporation into the possession of such real estate was unlawful and the taking of such property by the defendant was without the permission of the plaintiff.

      Held, that the action was barred by section 5057 of the Revised Statutes of the United States.

      Stevens v. Hauser (89 N. Y. 302), distinguished.
    Appeal by tlie plaintiff, John B. Bowen, as assignee in bankruptcy of the estate, property and effects of Anna N. Dwight, a bankrupt, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Broome on the 3d day of July, 1891, upon the decision of the court, rendered after a trial at the Broome Circuit before the court and a jury (the jury having been dismissed at the close of the evidence and the case taken by the justice for decision), dismissing the plaintiff’s complaint upon the merits, with notice of an intention to bring up for review on such appeal the said judgment and the findings of fact and conclusions of law therein contained.

      Millard d¡ Stewart, for the appellant.

      D. S. (& 12. JB. Richards, for the respondent.
   Martin, J.:

This action ivas brought to recover the possession of certain real property described in the complaint. Among other matters set up in the answer, the defendant alleged as a defense that the cause of. action herein accrued more than two years prior to the commencement of the suit, and that it was barred by section 5057 of the United States Revised Statutes, which declares : “ No suit, either at law or in equity, shall be maintainable in any court between an assignee in bankruptcy and a person claiming an adverse interest, touching any property or rights of property transferable to or vested in such assignee, unless brought within two years from the time when the cause of action accrued for or against such assignee.” Whether this statute was a bar to the plaintiff’s action is the only question we need consider on this appeal. The language of the statute is broad, and seems to be sufficiently comprehensive to constitute a defense to this action.

Whatever interests Anna N. Dwight, the bankrupt, had in the premises in question passed to the plaintiff as her assignee on the 10th of September, 1878. In September, 1880, the New York, Lackawanna and Western Railway Company claimed to have acquired title to and entered into the possession of the premises, and during that month commenced the work of erecting a bridge and embankment thereon. On the 2d of October, 1882, the defendant leased the New York, Lackawanna and Western railroad, and since that time has been in possession thereof, claiming a right to the premises in question. At the request of the plaintiff the court, among other things, found: “ That in the year 1880 the New York, Lackawanna and Western Railway Company, unlawfully and without the permission of plaintiff, entered into the possession of the premises described in the complaint, and constructed a high railroad embankment and built railroad abutments and piers thereon, and upon said embankment and piers placed their railroad tracks. That on or about the second day of October, 1882, the above-named defendants, without the permission of the plaintiff, took possession of the premises described in the complaint, since which time they have been in the actual jiossession of the said premises, claiming title thereto.” As a Conclusion of law the court held that the plaintiff’s cause of action accrued to him in September, 1880, and as this action was commenced July 23, 1888, it was barred by section 5057.

The plaintiff contends that that statute is not applicable to this case because the cause of action for which it was brought never vested in the bankrupt, but arose out of a wrong to the plaintiff as assignee, or to the property vested in him. To sustain this contention he cites the case of Stevens v. Hauser (39 N. Y. 302). The question in that ease arose under the Bankrupt Law of 1841, which provided : “No suit at law or in equity shall, in any case, be maintainable by or against such assignee, or by or against any person claiming an adverse interest touching the property and rights of property aforesaid, in any court whatsoever, unless the same shall be brought within two years after the declaration and decree of bankruptcy, or after the cause of suit shall first have accrued.” That was an action of ejectment brought by the plaintiff who obtained his title through a conveyance from an assignee in bankruptcy. The defendant set up the foregoing statute as a bar. His possession did not commence until four years after the title was vested in the assignee. In that case it was said, following the opinion of Mr. Justice Nelson in the Matter of Conant (5 Blatchf. 54); that the act of Congress (Laws 1S41) limiting the assignee in bankruptcy to two years within which to bring the action, had no application to a cause of action arising in his own favor for injury to property, or a disseizin of lands vested in him by the proceeding. In the Stevens case it appears, in the opinion of Mason, J., that the case failed to show that the defendant or any one else claimed to hold the premises adversely, or under a title adverse to that of the assignee of the plaintiff, to whom the title was transferred. The judge, in delivering the opinion, said: “ This eighth section of the Bankrupt Act, prescribing this two years’ Statute of Limitations, never was to bar the right of entry as against a purchaser from the assignee in bankruptcy, where the bankrupt actually had the title and the assignee sold and conveyed it by order of the court. It was never intended to limit this action of ejectment, in such a case, to two yéars.”

It will be perceived, that the Stevens case is unlike the one at bar, in that the action was there brought by a purchaser, from the assignee in bankruptcy under a sale and conveyance made by an order of court. While it may be that Congress had authority and intended to provide that no action should be brought by or against an assignee unless commenced within, two years, yet it might not have power or have intended to provide that a purchaser of the property of a bankrupt should not maintain an action after two years where the bankrupt had actual title and the assignee sold and conveyed it by an order of court. In Banks v. Ogden (2 Wall. 69, 70) it was doubted if the limitation of that statute could be applied to sales of real estate, made by an assignee under the order of the District Court having general jurisdiction of proceedings in bankruptcy.

The appellant as sustaining his contention also cites the cases of Davis v. Anderson (6 Nat. Bankr. Reg. 145); Sedgwick v. Casey (4 id. 496); Smith v. Crawford (9 id. 38); In re Krogman (5 id. 116); and Bachmam v. Packard (7 id. 353). In the Davis case it was held that the limitation of two years in section 2 of the Bankrupt Act of 186Y applied only to property held adversely to the bankrupt and his assignee, and that where the bankrupt fraudulently conveyed his lands to avoid a judgment, a purchaser under the judgment and a sale made under execution after proceedings in bankruptcy, could not defend on the ground that the assignee did not commence suit to set aside the execution, sale and deed within two years after the assignment, as no cause of action accrued to the assignee against the purchaser until he acquired his title under the judgment and execution sale. ' The SedgwieJc case in effect held that the Statute of Limitations contained in section 2 of the Bankrupt Law of 1867 was not applicable to a suit to collect a debt or to enforce the payment of money due upon a contract. The Smith case was to the same effect, holding that section 2 did not apply to the collection of ordinary debts due the bankrupt prior to the adjudication. In the Matter of Krogman, where the defendant simply disputed the amount of the assignee’s claim and not the assignee’s interest and rights touching the property, it was held that section 2 did not apply. The decision in the Baókman case was to the effect that the concurrent jurisdiction conferred upon the Circuit Court by section 2 of the Bankrupt Act of 1867 was limited to cases where there was a controversy concerning the right to, or some interest in some specific thing between the assignee and a third person, and did not include an action to collect a debt.

These cases do not, we think, aid the appellant, and the only ones to which our attention has been called which even tend to uphold his contention are the Gonant and Stevens eases, to which we have already referred.

On the other hand, the respondent claims that section 5057 is, by its terms, applicable and a bar to this action. As an original question, independent of any authority, it would seem that the plain reading of the statute upholds this claim. The respondent also insists that the authorities cited by the appellant, so far as they tend to sustain a contrary doctrine, have been overruled or are against the weight of authority upon that question, and refers to the following cases as sustaining its insistence. (Cleveland v. Boerum, 24 N. Y. 613; Banks v. Ogden, supra; Bailey v. Glover, 21 Wall. 342, 346; Gifford v. Helms, 98 U. S. 248, 252; Jenkins v. International Bank, 106 id. 571; Phelan v. O'Brien, 13 Fed. Rep. 657; Harvey v. Gage, 31 id. 275 ; Avery v. Cleary, 132 U. S. 604.) Cleveland v. Boerum was an action for the redemption of land from a mortgage after ■ offer to pay the amount secured thereby. The defendant was a purchaser under the mortgage sale. The plaintiff claimed to have acquired the interest of one of the owners of the equity of redemption under a transfer by his assignee in bankruptcy. In that case the question arose whether section 8 of the Bankrupt Act of 1841 was applicable, and it was held that the two years’ limitation provided by that statute applied and was a bar to the action. In Banks v. Ogden it was said : The eighth section of the Bankrupt Act of 1841 limited suits concerning the estate of the bankrupt by assignees against persons claiming adversely, and by such persons against assignees, to two years after decree of bankruptcy or first accrual of cause of suit. There is no express limitation upon sales, nor any limitation upon any action other than suits, by the assignee, except” — and then follows a provision which is not applicable in this case. From this case it is to be plainly inferred that, after the expiration of two years, an action for the recovery of real estate is barred by the statute. In Bailey v. Glover, Miller, J., in examining section 2 of the Bankrupt Law of 1861, said : “ This is a statute of limitation. It is precisely like other statutes of limitation and applies to all judicial contests between the assignee and other persons touching the property or rights of property of the bankrupt transferable to or vested in the assignee, where the interests are adverse and have so existed for more than two years from the time when the cause of action accrued, for or against the assignee. Such is almost the language in which the provision is expressed in section 5051 of the Revised Statutes.’ In Gifford v. Helms, Mr. Justice Clifford, in discussing section 5054, said: “ Beyond doubt, it applies to all judicial contests between the assignee and other persons touching the property or right of property of the bankrupt, transferable to or vested in the assignee, where the interests are adverse, and have so existed for more than two years from the time when the cause of action accrued, for or against the assignee.” (Citing Bailey v. Glover, supra.) In Jenkins v. International Bank, it was held that where a judgment in a State court was rendered against one shortly thereafter declared to be a bankrupt, a writ of error to that judgment brought by his assignee is a suit within the meaning of section 5054 of the United States Revised Statutes, and that the limitation of time in that section apjfiies to a suit by the assignee to recover a debt or other moneyed obligation, as well as to a controversy concerning property or rights of property to which there are adverse claims. In Phelan v. O’Brien, which was an action to set aside a sale under a deed of trust, which was foreclosed by an assignee in bankruptcy, who purchased the property for the benefit of the estate, it was held that proceedings instituted more than two years after the sale to set it aside, were barred by the limitations of the Bankrupt Act. The case of Matter of Conant (5 Blatchf. 54) was there considered, and regarded as practically overruled by Banks v. Ogden (2 Wall. 51) and Norton v. De La Villebeuve (13 Nat. Bankr. Reg. 304). In Harvey v. Gage, where the defendant obtained two tax deeds, made and recorded in 1877 and 1880, to property of which the plaintiff as assignee in bankruptcy had become seized in 1873, it was held that a suit to set aside such deeds, commenced by the plaintiff as such assignee in 1886, was not maintainable, it not having been brought within two years from the time the cause of action accrued; in other words, that it was barred ‘by section 5057. In Avery v. Cleary, one Ellis had three policies of insurance upon his life, which, in May, 1877, he transferred to one Morse, in trust, to pay the income to his two daughters. In July, 1878, he filed a petition in bankruptcy, and, having been adjudged a bankrupt, his estate was transferred to an assignee, who acted until he was succeeded by the defendant in error. The bankrupt died in November, 1879, and in the following December, the insurance company paid to the plaintiff in error, his administrator, who was also the guardian of the children, the amount due upon said policies. In September, 1882, the plaintiff, as assignee in bankruptcy, brought an action to recover from the administrator of the bankrupt the amount received upon such policies. It was held that the suit was one between an assignee in bankruptcy and one claiming an adverse interest touching the property which was the subject of controversy and within the meaning of section 5057, prescribing a limitation for the commencement of such an action. It was also held that mere ignorance of the existence of a cause of action by an assignee in bankruptcy does not remove the bar against such an action prescribed by this Statute of Limitation.

This review of the authorities touching the question, while, perhaps, disclosing that they are not in all respects in harmony, yet, we think, renders it quite manifest that the weight of the authorities tends to sustain the conclusion reached by the learned trial judge. What would have been the result if the plaintiff, as such assignee, had transferred the land to another in pursuance of an order of the bankrupt court and the purchaser had brought this action, it is unnecessary to decide. But as there was no such transfer and this action was brought by the assignee, we think it falls within the bar of the statute, and the court properly so held. It follows, therefore, that the judgment should be affirmed.

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

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Martin, J.:

license: Public Domain

text:
    George C. Glassford, Respondent, v. Alfred C. Lewis, Appellant, Impleaded with Others.

      Motions to set aside verdicts and for new trials — when granted — statement of the proof required, where made on the ground of newly discovered evidence.

    Motions to set aside verdicts as contrary to the evidence, as well as motions for new trials made on the ground of newly discovered evidence, are not governed by any well-defined rules, but depend in a great degree upon the peculiar circumstances of each case, and are addressed to the sound discretion of the court; whether they should be granted or refused involves the inquiry whether substantial justice has been done, the court having in view solely the attainment of that end, and they should be liberally granted in furtherance of justice.
    A trial judge is invested with power to set aside a verdict and grant a new trial on the ground that the verdict is against the weight of the evidence, or because the damages are excessive or insufficient, or when for any other reason substantial justice would be promoted thereby; and it is at all times a serious matter for an appellate court to reverse on the ground of error an order made by a trial judge setting aside a verdict as against the weight of the evidence.
    Upon a motion for a new trial' on the ground of newly discovered evidence, it must appear that the evidence was discovered since the trial: that it could not have been obtained upon the former trial by the exercise of reasonable diligence; that it is material to the issue and goes to the merits of the case; that it is not merely cumulative, and that its character is such that it would probably have changed the result. When these facts appear, and the court is satisfied that the ends of justice will be promoted by allowing the moving party an opportunity to present the newly discovered evidence, the motion will be granted.
    Appeal by the defendant, Alfred C. Lewis, from an order of the Supreme Court, made at the Broome Special Term and entered in the office of the clerk of the county of Otsego on the l'Tth day of May, 1894, setting aside the verdict rendered and judgment entered in the action, and granting a new trial thereof.

      W. II. Johnson., for the appellant.

      It. M. Townsend and Oarver, Deyo <& JenJyms, for the respondent.
   Martin, J.:

The motion for a new trial which resulted in the order appealed from was made upon the ground of newly discovered evidence, and because the verdict was contrary to the evidence.

A careful reading of the testimony contained in the appeal book discloses that the Special Term may well have granted the plaintiff’s motion upon the ground that the verdict was against the weight of evidence. It was said by Allen, J., in Barrett v. The Third Avenue R. R. Co. (45 N. Y. 632): “ Motions to set aside verdicts as contrary to evidence, as well as motions for a new trial upon the ground of newly discovered evidence, are not governed by any well-defined rules, but depend in a great degree upon the peculiar circumstances of each case. They are addressed to the sound discretion of the court, and whether they should be granted or refused involves the inquiry whether substantial justice has been done, the court having in view solely the attainment of that end.” The same doctrine is held in McKeever v. Weyer (11 Wkly. Dig. 258); Oberlie v. Bushwick Ave. R. R. Co. (6 N. Y. St. Repr. 771); Bannon v. McGrane (45 N. Y. Super. Ct. 517); Macy v. Wheeler (30 N. Y. 231), and Standard Oil Co. v. Amazon Ins. Co. (79 id. 506). In the Bannon case it was said: “ It is at all times a grave question for an appellate court to reverse, on the ground of error, an order made by the trial judge setting aside the verdict as against the weight of evidence.” In Young v. Stone (77 Hun, 395), after reviewing these cases, this court said : “We think a trial judge is invested with power to set aside a verdict and grant a new trial on the ground that the verdict is against the weight of evidence, or because the damages are excessive or insufficient, or when, for any other reason, substantial justice would be promoted thereby. This power we think an important one, and one that ought perhaps to be more often exercised by trial courts for the proper protection of the rights and interests of litigants.”

Applying these rules and considering the proceedings and evidence had and taken before the trial court, we are led to the conclusion that the order appealed from should not be reversed, as the court was justified in granting a new trial on the ground that the verdict was against the weight of evidence.

We are also of the opinion that the court was justified in granting the order upon the ground of newly discovered evidence. The defendants’ claim that the motion should have been denied because of the plaintiff’s laches in making it should not, we think, be sustained. An examination of the affidavits read upon the hearing of this motion renders it apparent that the Special Term may have found that the laches of which the defendants complain was occasioned as much or more by their delay than that of the plaintiff. Moreover, the court may also have found upon the papers before it that the defendants expressly waived the question of laches in consideration of the plaintiff’s consent to a postponement of the motion. If the affidavit of the plaintiff’s attorney was relied upon, the court, as well as the counsel for the defendants, may have thought that he was not in a position to raise the question of laches.”

This leaves for consideration the question whether the papers upon which the motion was granted were sufficient to authorize the court to grant a new trial upon the ground of newly discovered evidence. The general rules applicable to such a motion are well settled. It must appear that the evidence has been discovered since the trial; that it could not have been obtained upon the former trial by the exercise of reasonable diligence; that it is material to the issue and goes to the merits of the case; that it is not merely cumulative, and that its character is such that it would probably have changed the result. When these facts appear and the court is satisfied that the ends of justice will be promoted by allowing the moving pai’ty an opportunity to present the newly discovered evidence, the motion will be granted. (Graham & Waterman on New Trials & Appeals, 642, 1085, 1086; Powell v. Jones, 42 Barb. 24, 29; Bonynge v. Waterbury, 12 Hun, 534; Sistare v. Olcoit, 22 N. Y. St. Repr. 564; Darbee v. Elwood, 2 Hun, 599.) Motions for new trials are addressed to the discretion of the court whether based upon the weight of evidence, surprise or newly discovered evidence, or the fact that the party has been deprived of his evidence by accident or other like grounds, and in modern practice they are liberally granted in the furtherance of justice. (Platt v. Munroe, 34 Barb. 291; Tyler v. Hoornbeck, 48 id. 197.)

We think the motion papers sufficiently show that the new evidence was discovered since the trial, could not have been obtained on the former trial by reasonable diligence, that it is material, not merely cumulative, of a character that would probably change the result and sufficient to authorize the court in its discretion to grant an order for a new trial on that ground. The facts in this case are much stronger than in Holmes v. Roper (32 N. Y. St. Repr. 470), where an order denying such a motion was reversed and a new trial granted upon that ground.

The order must be affirmed, with costs.

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

Order affirmed, with costs.


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    In the Matter of the Probate of the Last Will and Testament of John W. Flansburgh, Deceased; Susan Brizzee, Appellant, Calista A. Miller, Respondent.

      Testamentary capacity — presumption that every man is compos mentis — proof in that respect required of the proponents of a will.

    If a testator’s mental powers enable him to understand and appreciate the amount and condition of his property and to comprehend the nature and consequences of his act in executing his will, he is at liberty to dispose of his property as to him seems best so long as the disposition is in accordance with his own free act.
    Although the legal presumption is that every man is compos mentis, and'the burden of proof that he is not rests upon the party alleging it, it nevertheless devolves upon the proponents of an alleged last will and testament to prove not only the execution and publication of such will, but also the mental capacity of the testator, and if, upon a consideration of the evidence upon both sides, the court is not satisfied that the testator was of sound and disposing mind and memory, the probate of such instrument should be denied.
    Appeal by Susan Brizzee, a legatee named in the alleged, will of John W. Flansburgh, deceased, from a decree of the Surrogate’s Court of the county of Broome, entered in the Broome County-Surrogate’s Court on the 15th day of December, 1893, refusing th& probate of an instrument offered as and for the last will and testar ment of John W. Flansburgh, deceased.

      Carver, Deyo da Jenhins, for the appellant.

      A. 1). Wales, for the respondent.
   Martin, J.:

It was expressly found by the Surrogate’s Court that the execution of the will in question was not procured by undue influence. This finding was, we think, fully justified by the evidence. The only ground upon which probate of the testator’s will was denied •was that he was not of sound and disposing mind and memory, and not competent to make a valid will. Hence, the only question to be determined upon this appeal is whether the evidence was sufficient to fairly justify that conclusion.

If the testator’s mental powers enabled him to understand and appreciate the amount and condition of his property and to comprehend the nature and consequences of his act in executing the will in question, he was at liberty to dispose of his property as to him .seemed best so long as the disposition was his own free act. (Matter of Will of Snelling, 136 N. Y. 515, 517.) Although the legal presumption is that every man is compos mentis, and the burden of proof that he is not rests upon the party alleging it, still it devolved upon the proponents to prove not only the execution and publication of this will, but also the mental capacity of the testator, and if, upon consideration of the evidence on both sides, the court properly was not satisfied that the testator was of sound and disposing mind and memory the probate should have been denied. (Delafield v. Parish, 25 N. Y. 9.)

"While the evidence offered by the contestants tended to show that the testator was more irritable and excitable in the later years of his-life than-formerly; that he was for several years before and until about the time of the execution of his will subject to epileptic .üts; that he was not always cleanly in the use of tobacco or as particular. .as formerly in the exposure of his person when attending to •the calls of nature; that he sometimes got lost; that he was par- • tially .blind (which may explain some of these acts); that in a spirit •-of fun he sometimes performed acts of a childish nature; that he became distrustful of his daughter and her husband when they had quarreled as Dr. Dibble predicted they would because the /daughter and father were so nearly alike, and that, he sometimes .'shed tears, presumably when meditating upon the troubles which •encompassed him; yet, after a careful study of all the evidence contained in the appeal book, we are unable to concur in the conclusion <©f the learned surrogate as to the incompetency of the testator to make-the will in question. We are, therefore, of the opinion that the decree of the Surrogate’s Court should be reversed and the issues tried before a jury.

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

Decree of Surrogate’s Court of Broome county reversed and a new trial of the issues of fact directed before a jury of the Circuit Court of Broome county, with costs to abide the final award of ■costs. The order to be settled before Martin, J.


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    In the Matter of the Claim of Mary Bingham, Respondent, v. Daniel M. Tuttle, as Assignee for the Benefit of the Creditors of E. C. Stark & Co., Appellant.

      Partnership — division of profits by a credit to each member of the firm — right of an assignee of the amount set off to one partner as against an assignee for the creditors of the firm.

    A division of their assets by solvent partners is valid, and a transfer by one of the partners of the partnership assets so acquired in payment of his personal debts is also valid.
    When the profits of a solvent firm are by agreement divided between the partners, and credited to each upon the books of the company, there is created a separation from the firm assets of the portion so divided, and the title thereto passes as completely and effectually as it would if a note or certificate of deposit was given therefor by and in the name of the firm.
    After the division of such profits and the giving of such individual credit to each of the two partners, such credit, as between the parties, is a valid debt from the firm to each of its members for the amount of the divided profits credited to them respectively; and immediately after such division an action may be maintained by either one of such partners against the firm, to recover his respective portion of such divided profits, and if either of the partners, during the solvency of the firm, makes a transfer of his portion of such divided profits, his assignee may maintain an action against the firm for the recovery thereof. After the assignee of one of the partners acquires such right to her assignor’s share of such divided profits it cannot be altered or changed by any subsequent dealings or complications arising between her assignor and the firm of which he is a member, or between the members of such firm. The fact that the firm becomes insolvent after such transfer to her, and makes an assignment for the benefit of its creditors, does not affect her right to recover from the general assignee of the firm the amount of such divided profits so credited to one of the partners individually, and by him transferred to her.

      Appeal by the defendant, Daniel M. Tuttle, as assignee for tbe benefit of the creditors of E. 0. Stark & Go., from a judgment of the County Court of Madison county in favor of the plaintiff, entered in the office of'the clerk of the county of Madison on the 8th day of May, 1894, upon the report of a referee, and also from an order entered in said clerk’s office oil the 7th day of May, 1894, confirming the said referee’s report, and directing the entry of judgment thereon, with notice of an intention to bring up for review on such appeal the referee’s report, the order of confirmation thereof, the judgment and all the exceptions taken, made and filed in the case.

      Tuttle c& Ransom, for the appellant.

      J. 8. Balter, for the respondent.
   Martin, J.:

This is an appeal from a judgment entered in Madison county May 8, 1894, for $12,726.70 damages and costs. The judgment was entered upon an order of the Madison County Court confirming the report of a referee appointed by that court to try the issues and report to the court upon a claim for $12,500, presented by the plaintiff to the defendant as assignee for the benefit of creditors of E. C. Stark, which was disputed by the assignee. Prior to the time of the assignment the firm of E. C. Stark & Co. was composed of Elverton C. Stark and Rinaldo M. Bingham, and was engaged in the business of private bankers at Oneida, N. Y. They had been engaged in that business since 1875. During a portion of that time, and from 1888, they alone constituted the partnership, and during other portions there was one and part of the time there were two other members of thé firm.

The capital of the firm was $20,000. Of this Bingham furnished one-fourth and the other partners three-fourths. Elverton C. Stark subsequently acquired the interest of the other members of such firm, so that from 1888 Bingham owned-one-fourth of the capital and Elverton C. Stark three-fourths.

The business of the firm was a very profitable one. A dividend of ten per cent upon the capital was annually declai-ed for the first ten or eleven years, and the profits in excess of the amount of such dividends were carried into a surplus account. In each of the years 1887, 1888 and 1889 a dividend or division of profits was made between the partners to the amount of fifty per cent upon the capital furnished by each. In 1890 a division or dividend of 100 per cent was divided between the partners, leaving a balance of $28,000 to the credit of the surplus fund account. "When these divisions were made the firm of E. C. Stark & Go. was solvent, the condition of the firm was such as to fully warrant them, and they were made in good faith and without intent to defraud any one. Upon making such dividends or divisions, the amount due each was credited on the deposit ledger of the firm to his individual account: After these divisions or dividends were made, there stood to the credit of Bingham upon the deposit ledger the sum of $12,500, which was at all times available and subject tobe drawn out by him. The ■other partner did drawn out and use his dividends or portion of the profits. Bingham drew none, and the $12,500 still remains to his individual credit on the books of the firm.

On the 31st day of January, 1891, Bingham transferred these dividends or deposits to the plaintiff, -who was his wife, as collateral security for certain indebtedness due her from him and from the firm of R. M. Bingham & Co. That he and the firm of R. M. Bingham & Go. were indebted to the plaintiff to an amount greatly exceeding the amount of such deposit was clearly proved. The proof also shows that her debt, after receiving all she could collect on other securities transferred to her, is more than the amount of such deposit.

On the 13th of July, 1891, nearly six months after the transfer to the plaintiff, the firm of E. C. Stark & Co. was dissolved, Bingham transferring to Stark all his right, title and interest in the assets of the firm, subject to the payment of the debts, but without prejudice to the plaintiff’s claim to the deposit standing in his name upon the books of the firm. On the next day E. O. Stark, as E. O. Stark & Co. and in his own name, made a general assignment to the defendant for the benefit of creditors, to which was attached the transfer by Bingham to Stark of his interest in the property of such firm, which contained the reservation of the plaintiff’s right to the $12,500 in question. The assignment contained no preferences, except such as were preferred by law for work, labor and services. No part'of tlie $12,500 was separated, from the funds of the except by crediting the same to Bingham upon the deposit ledger. No checks were ever drawn agamst it, so that at the time of the assignment to Bingham’s wife it stood in his individual account as-a credit of $12,500. At the time of the assignment made by E. 0. Stark the firm of R. M. Bingham & Co. was largely indebted to him. While the assignment to the plaintiff purported to assign Bingham’s interest in the firm of E. C. Stark & Co., as well as the deposits standing in his name on the books of the company, yet she never made any claim -to any interest in the firm or to the firm, assets, except to the dejDosit of $12,500.

The referee refused to find that the firm of E. C. Stark & Co. was-insolvent from January 1, 1891, to July 14 of the same year, or that they were insolvent at any time from the year 188Y until July 13, 1891, or that R. M. Bingham & Co. was insolvent at any tim& from the year 1886 to July 13, 1891, or that Rinaldo M. Bingham was insolvent during that time.

Upon these facts the referee found, as conclusions of law, that the agreement of the members of tlie firm to divide a portion of the profits of the business in the several years mentioned, and the act of the firm in dividing such profits and crediting the same upon the deposit ledger to the individual members, subject to be drawn at any time by such individual members, was, in law, a separation of' the joint assets of the firm, and made the dividends the individual property of the several members; that the $12,500 credited to R. M. Bingham became and was his individual property from the time-it was credited, and he had a legal right to transfer the same to the plaintiff; that the transfer was for a good and valuable consideration, which remains unpaid, to an amount larger than the amount-of such deposits, and that the claimant was entitled to receive and collect the amount thereof against the defendant .as such assignee,, payable out of the estate in his hands.

A careful study of the evidence has led us to the conclusion that the learned referee was justified in refusing to find that E. C. Stark & Co., or R. M. Bingham & Co., or R. M. Bingham, was insolvent at the time of the assignment to the plaintiff of the deposit in question. Therefore, in determining the validity of that assign-' ment, it must be assumed that at the time it was made all these-parties were solvent. Assuming that E. C. Stark & Co. and Bingham were solvent when the assignment to the plaintiff was made, the question presented is whether she was entitled to recover the amount of the deposit in question against the defendant as assignee of E. C. Stark.

The appellant’s contention is that the firm of E. 0. Stark & Co. was insolvent, and, being insolvent, the transfer by B. H. Bingham to the plaintiff of his individual 'account credited upon the books of the firm was void as against the creditors of such firm. He cites, as sustaining his contention, the cases of Ransom v. Van Deventer (41 Barb. 307); Wilson v. Robertson (21 N. Y. 587); Menagh v. Whitwell (52 id. 147); Kirby v. Schoonmaher (3 Barb. Ch. 46); Burtus v. Tisdall (4 Barb. 571); McCall v. Moschowitz (10 N. Y. Civ. Proc. Rep. 140); Hewitt v. Northrup (75 N. Y. 509), and In re Rieser (19 Hun, 202 ; affd., 81 N. Y. 629).

In the Rcmsom case it was held that a division by partners, of the co-partnership assets between themselves, and the transfer of the same by the individual partners in payment of their • private debts, when the partnership was insolvent, was fraudulent and yoid. In discussing this question, however, Smith, J., who delivered the opinion in that case, said: “ The division by solvent partners of their ‘assets would be entirely valid, and the transfer by one partner of partnership assets thus acquired to pay his personal debts would also be entirely valid.”

The Wilson case holds that the appropriation by an insolvent firm of partnership property to the payment of the individual debts of one partner is fraudulent and avoids the deed of assignment. In Menagh v. Whitwell it was said: This mortgage, if such be its. true construction, having been given to secure the individual debt of the partner, even if effectual as to the firm, by reason of the concurrence of all the partners giving it, would be a fraudulent misapplication of the partnership property, and void as to the-creditors of the firm, under the principle of the cases of Ransom v. Van Deventer (41 Barb. 307) and Wilson v. Robertson (21 N. Y. 587), unless the firm were solvent at the time the mortgage was-given, and sufficient property would remain, over and above that devoted by that instrument to the payment of the individual debt,, to pay the debts of the firm-.”

In the Kirby case it was held that where partnership property is placed in the hands of an assignee to make distribution thereof, it is administered in courts of equity by applying the co-partnership funds, in the first place, to the payment of the debts of the firm, and the individual funds of the several co-partners to pay their individual debts respectively before paying joint debts out of the same ; but, where the co-partners are administering their own funds, the co-partnership creditors have no specific or preferable lien upon the joint funds, nor have individual creditors any lien or priority of claim upon the separate property of their debtors. In the opinion in that case it is said : “ The co-partners certainly have the right to dissolve the partnership and divide the property of the firm between them, provided there is no intention of delaying or hindering their creditors in the collection of debts, thereby leaving their joint, as well as their separate creditors, to compete for a preference in payment.” The chancellor adds: “ The case would have been entirely different if co-partners, who were insolvent, and unable to pay the debts of the firm, either out of their co-pártnership effects or of their individual property, had made an assignment of the property of both to pay the individual debt of one of the co-partners only.”

In Burtus v. Tisdall it was held that members of an insolvent partnership could not, by mutual consent, divide the partnership funds between themselves, so as to enable each member to apply the part allotted to him, in a preferred payment of his separate debts, leaving joint debts unsatisfied. In the opinion in that case it was said : “ It was contended on the argument, * * * that co-partners have a right to appropriate, by mutual consent, their joint property to the payment of debts owing by them individually, leaving those of the partnership unsatisfied. That may be true where the firm is solvent, and sufficient is left to satisfy the joint debts.”

The McCall case was an action to dissolve a co-partnership and for an accounting between the partners, and it was there said: “ It is a fundamental rule of law, needing the citation of no authorities, that co-partnership assets must be first applied to payment of co-partnership debts.”

All that was said in the Ilewitt case that relates to this subject was that the equitable rule for the administration of the property of persons who are members of an insolvent firm, and who own firm property and individual property, and owe firm as well as individual debts, is that the firm creditors are entitled to be first paid out of the firm property, and individual creditors to be paid out of individual property.

In In re liieser, where a firm was indebted to one of its partners for goods sold to it by him, and became insolvent and made a general assignment; and the partner also became insolvent and made a general assignment, and upon an accounting the assignee of the partner was allowed to prove the amount due from the firm to his assignee as a firm debt, and to share in the distribution of the assets of the firm with the other firm creditors, it was held that this was erroneous; that such debt could be paid only after all the other creditors of the co-partnership had been fully paid.

An examination of these cases renders it manifest that they have no application to the question under consideration, as in those cases the co-partnerships were insolvent at the time when the transactions occurred which were the subject of investigation. In this case, as we have already seen, at the time of the assignment of the individual credit of R. M. Bingham to the plaintiff the firm and parties were solvent. Hence, we find nothing in any of the cases cited which would, under the circumstances of this case, justify us in holding that the transfer to the plaintiff was invalid. Those cases recognize the doctrine that a division of their assets by solvent partners is valid, and that a transfer by one partner of the partnership assets thus acquired to pay his personal debts would be entirely valid.

The marginal note in the case of Crosby v. Nichols (3 Bosw. 450) is as follows: “ When the members of a firm, by agreement among themselves, make an actual division between them of part of the firm’s assets, and allot to each,’ as his own property, specific poi’tions thereof, and tire division thus made is assented to and acted upon by all the partners, the title to the part so allotted to each becomes thereby his exclusive individual projrerty. If one partner receive from a third person payment of a debt owing by him to the firm, which has been so allotted to his co-partner, the latter may maintain an action against him to recover the amount so received.” In 1 Lindley on Partnership (5th Eng. ed. 334) it is said: “ It is eompetent for partners, by agreement amongst themselves, to convert that which was partnership property into the separate property of an individual partner or vice versa. And the nature of the property may bo thus altered by any agreement to that effect.” In 2 Lawson’s-Nights, Nemedies and Practice (§ 663) it is said: Partners may at any time, by agreement between themselves, convert partnership property into the several property of any one or more of the partners, or the several property of any partner into partnership property. Such cpnversion, if made in good faith, is effectual not only as-between the partners, but as against creditors of either the partners or of the firm.”

The doctrine of the case of First Nat. Bank v. Wood (128 N. Y. 35) seems to be applicable to, and well nigh conclusive upon, the-question of the validity of the division of profits or assets of a firm and a transfer by one partner of the partnership assets thus acquired to pay his personal debts. In that case where, in 1876, upon the settlement of accounts between the firm of O. K. "Wood & Co., which was composed of three member’s, and the firm of V. A. Wood & Co., composed of two members, who were also members of the former firm, a sum was found due -the latter firm from the former. In the settlement it was agreed that 0. K. Wood & Co. should .give its notes to each of the members of V. A. Wood & Co. for one-half the-amount. At their request the note to which each was entitled was made payable to his wife. Each received his note and delivered it to his wife as a gift, and it was thereafter retained by her. O. K, Wood & Co. paid interest on the notes each year up to 1884, by giving the holders its notes therefor. In May of that year it became insolvent, and made an assignment for the benefit of creditors, preferring the wives to the amount of the original notes and those given for interest. In an action by a judgment creditor of O. K, Wood & Co., a portion of whose claim accrued in 1879, to set aside-said assignment as fraudulent because of said preferences, it was held that the action was not maintainable; that the payees named in the notes became absolute owners upon the delivery to them to the same extent as if they had paid value, and that such title and consequent right of recovery were in no way diminished or affected by the subsequent dealings or complications of the two firms.

In delivering the opinion in that case Neckham, J., said : c< The result of the action of tlie parties was simply a transfer of tlie firm-debt to tlie respective wives. At tliis time tlie firm was solvent. The transaction was, in substance, tlie same as if the makers had made the notes payable to the two members of the other firm, and had thus delivered them to such members, and those members had then indorsed and delivered them to their wives as free and voluntary gifts. If the makers of the notes had thus delivered them to-■the other partners as payees the title to the debt, of which the notes were evidence, would have then gone to the payees, and if the payees had transferred the notes by gift and delivery to their wives, the title to that debt would have been also transferred with and followed the notes, and would have remained one-half with each of such wives. * * * . The debt was an honest one ; it was due, and the firm that owed it was largely solvent and recognized its obligation, and gave the notes. It is admitted that the donees might, at that time, have maintained an action against tlie makers on the notes and recovered thereon. If so, it could only be upon the ground that-they had become the owners of the notes. They became such, owners only by virtue of a voluntary gift accompanied by an immediate and unconditional delivery. This, indeed, did give to the donees a perfect title and absolute ownership to and in the notes, as. there were then no equities existing between the original parties, ^The notes represented the original debt. ITow is it then that such ownership, although absolute at the time of the transfer and giving' the holders of the notes a right of action, shall, nevertheless, if not acted on by collecting the money, be liable at any future time to be changed, and, indeed, extinguished by matters subsequently arising-between those original parties ? * * * In this case the debt was in its origin a firm debt, and the firm gave a written obligation to pay it. By a legal transfer tlie debt has become the property of the wives of the then creditor members of the firm, and they became-such owners at a time when there was no defense to the notes as-between the original jiarties to them. The plaintiff in answer to-these views claims that the notes should be treated in the same way as if they represented advances made by the partners to the firm, and he insists that they can be paid only upon an adjustment of the partnership accounts at the time of , the dissolution of the partnership, and until then constitute no indebtedness. The truth. is tbe parties made no advances to tlie firm, and the notes cannot represent a substance which never existed. The makers of the notes owed the two members the sum represented by the notes, and that sum was a proper partnership debt. A partner who simply makes an advance to the firm, relying upon an implied promise of the firm to repay, occupies a totally different attitude from one member of a firm who has had an accounting with the firm, and upon that accounting has been found to be its creditor, and who has then taken from the firm a written jiromise to pay the debt thus found due him. In the first case the promise, winch is implied in favor of the partner who makes the advances, is that the firm will repay such sum as may be found due the member upon an accounting, while in the other case the express promise excludes any implication whatever, and may be enforced according to its terms. The result is that in some cases the assignee of the debt can subsequently maintain an action thereon where the assignor, at the time of the commencement of the action, could not. This is not at all inconsistent with the cases which hold the principle that no one deriving under the partner (assignor) can be in a better position than such partner, that is, a better position than the partner was when he assigned. * * * In this case, if the members of the Y. A. "Wood & Co. firm had kept the notes in their own possession without assignment until the O. K. "Wood & Co: firm became insolvent, and had then, by gift, transferred the notes to their wives, the latter would have taken simply the right which their husbands had, and, as they could not, at the time of the transfer, have maintained an action upon the notes without an accounting and the preference of other firm debts, it would follow that their voluntary transferees could not. So the question is really reduced to the j>oint as to what was the right of the transferee at the very moment of transfer. If at that time the notes could have been sued upon by the transferrer, that right went to the transferee, and could not, therefore, be altered by subsequent matters between the original parties.” "We have thus quoted from the opinion in that case at considerable length, for the reason that the principles enunciated and the reasoning of the court seem to be quite pertinent to if not decisive of the question under consideration. We see no reason why, when the profits of á firm are, by agreement, divided between the partners and credited to each upon tbe books of tbe company, it does not work a separation from tbe firm assets of tbe -portion so divided and pass tbe title thereto as completely and effectually as it would if a note or certificate of deposit was given therefor by and in tbe name of tbe firm.

In tbe case at bar tbe debt of tbe firm of E. C. Stark & Co. to R. M. Bingliam was an honest one. Profits had been earned in the business to an extent that rendered it entirely proper for the parties to divide a portion of them between the individual members of the firm. This was done. After the division, and after an individual credit was given to each, it formed between the parties a valid debt from the firm to each' of the members for the amount of the divided profits credited to him. At that time the firm wras solvent, and recognized the propriety of dividing a portion of the profits of the business between its members, and its obligation to pay each his individual share of the profits thus divided. If immediately after such division Bingham had commenced an action to recover his portion of such divided profits, there is little doubt, we think, but that he could have recovered. (Cole v. Reynolds, 18 N. Y. 14; Bank of B. N. A. v. Delafield, 126 id. 410.) So, too, at the time when the transfer was made by Bingham to his wife, the action might have been maintained, as the firm was then solvent. This being so, it must follow that upon the assignment to the plaintiff she acquired a right to maintain such an action. There was no advance made by Bingham to tbe firm of such share; on the contrary, the firm was to pay him the amount of it. Tbe firm was indebted to him in the sum of $12,500 for such divided profits. That debt he assigned to his wife to secure valid debts which she held against him and the firm of which he was a member. Obviously, at the time of the assignment, she might have maintained an action against the firm of E. 0. Stai’k & Co. to recover the amount of the divided profits thus assigned, without any accounting with the firm. She having at that time acquired this right, it could not be altered or changed by any subsequent dealings or complications arising between her husband and tbe firm of E. C. Stark & Oo., or between the members of such firm. Ye are of the opinion that when the profits of the business of E. 0. Stark & Co. were, by agreement of the partners, divided and each of the partners was credited with his share, it became a debt against the firm, which could have been "enforced so long as the partnership remained solvent, and that either could transfer the same, and his transferee could maintain an action and recover the amount thus credited.

From these considerations, it follows that the judgment appealed from should be affirmed, unless the referee committed some error in the admission or rejection of evidence which would require a reversal.

"We have carefully examined each of the appellant’s exceptions to the rulings of the referee as to the admission of evidence, but have found none that we think sufficient to require us to interfere' with the judgment, and, therefore, we are of the opinion that it should be affirmed.

HaediN, P. J., and MerwiN, J., concurred.

Judgment and order affirmed, with costs.


author: MaettN, J.:

text:
    In the Matter of the Application of Thomas R. Petrie and Another, as Administrators, etc., of Stillman B. Sanders, Deceased, Respondents, to Dispose of his Real Estate to Pay his Debts; Hudson B. Farrington, Appellant.

      Promissory note — effect of payments by one of several parties liable thereon— Statute of Limitations — agency of the party making the payment — erroneous rulings, when disregarded on appeal.

    Where a payment oí interest is made upon a promissory note hy the maker thereof in the name of and as the agent for another, who is liable thereon, the payment (if it he subsequently recognized and approved by the person on whose behalf it was alleged to have been made, with full knowledge of the facts) is, as to the Statute of Limitations, equally binding upon him as a payment made by himself, irrespective of whose money was used in making the payment.
    Where one of two or more makers of a joint and several promissory note in fact signs it ns surety, a payment made thereon by his co-maker is not sufficient to take tlie note out of the Statute of Limitations as against such surety, where the payment, is not made by the maker as the authorized agent of such surety, unless the surety subsequently ratifies such payment.
    To make payments effective against a party to save a claim from the Statute of Limitations, they must have been made by him, or for him by his authorized agent; in all cases they must be, by previous authorization or subsequent ratification) the payments of the party sought to be affected by them.

      Where erroneous rulings are made in regard to the reception of evidence upon the trial of an action, if the error is harmless, it does not constitute a sufficient cause for the reversal of the judgment rendered therein.
    Appeal by Hudson B. Farrington, an alleged creditor of tbe estate of Stillman B. Sanders, deceased, from that portion of a decree of the Surrogate’s Court of the county of Herkimer, entered in the Herkimer County Surrogate’s Court on the -15th day of May, 1893, which adjudged that the claim of one Madeline Harter, assigned to the appellant, was not a valid or subsisting debt against the estate of Stillman B. Sanders, deceased.

      J. A. c& li. E. Steele, for the appellant.

      Steele c& Prescott, for the respondents.
   MaettN, J.:

A proceeding was instituted in the Surrogate’s Court of Herkimer' -county on the application of Thomas R. Petrie and another, administrators of the goods, chattels and credits of Stillman B. .Sanders, deceased, for the disjiosition of the decedent’s real property for the payment of his debts. While such proceeding was pending, and on or about January 31, 1891, Madeline Harter presented a claim •against the estate of the decedent for $600 and interest from November 2, 1889. The claim thus presented was upon a promissory note dated March 8, 1815, whereby Thomas R. Petrie and the decedent promised to pay to Madeline Harter or bearer the sum of ■$1,200 with interest one year from the date thereof. Payments had been made from time to time, so that there remained unpaid thereon only the sum of $600 and interest as already stated. Hpon Hie presentation of this claim, which was assigned to Hudson B. Farrington March 10, 1891, the administrators filed an answer setting up the Statute of Limitations.

Upon the trial the only question litigated was whether this claim was barred by the statute. It clearly appears that more than six years had elapsed after the note became due, and before the death of the intestate. The only ground upon which the claimant sought to avoid the operation of the statute was, that within six years before the death of the intestate he had made a payment upon such note.

The indorsements upon this note showed that the interest in full to that time and $600 of the principal were paid in or prior to March, 1883. The following indorsements also appeared thereon: “ Nov., 1888, received hay, the price of the same to applied as interest within;” “ Received on within note, Nov. 2, 1889, $91.28, as interest.” The claimant alleged and gave evidence which perhaps tended to show that on or about the 1st of January, 1887, the intestate sold and caused to be delivered to the tlieil holder of the note, a load of hay, and that afterwards, and in or about the month of March following, it was agreed between them that the price and value thereof should be applied in part payment of the interest due upon the note. Upon this alleged payment the claimant relied to relieve the note from the bar of the Statute of Limitations.

The surrogate found that the note was made and executed by Thomas R. Petrie and the intestate, and delivered to Madeline Harter on March 8, 1875 ; that Thomas R. Petrie was the principal maker and had the benefit thereof, the intestate having signed the same as surety; that the intestate died on September 18, 1890, and Thomas R. Petrie and Marietta S. Gardner were duly appointed administrators of his estate-on or about October 9, 1890 ; that $600 of the principal and the interest in full on sucli note up to March 8, 1883, had been paid ; that about January 1, 1887, Petrie delivered to Miss Harter, to apply as payment' on said note, a load of hay of the value of five to ten dollars, which with other payments, making $91.28, was indorsed on said note by Petrie November 2,1889 ; that no other payments had been made thereon; that the hay was delivered about January 1, 1887, was delivered by Petrie and was a payment made by him, and not a payment made by him as agent for the decedent, and not a payment by the decedent upon the note ; and that for six years prior to his death the intestate made no payments upon sucbj note, or did any act to prevent the running of the Statute of Limitations.

As a conclusion of law the surrogate held that the note and claim of the claimant was barred by the Statute of Limitations as against the estate of the intestate, and was not a valid claim against it. In pursuance of this decision a decree was entered which, among other things, ordered, adjudged and decreed that the claim of Madeline Harter, assigned to Hudson B. Farrington, was not a valid or subsisting debt against tbe estate of tlie intestate, and that tlie claimant was not entitled ]¡p have tlie amount due on such claim established in this proceeding as a debt due from the decedent, and tlie claim was disallowed and rejected. From this portion of tlie decree Hudson B. Farrington, tlie claimant, appealed.

An examination of the evidence discloses that whether the payment of January, 1887, was made by or for tlie intestate, or was made by Tilomas R. Petrie, one of the makers of the note, was at least a question of fact to be determined by the Surrogate’s Court. If that payment was made by Petrie, and not by or for the intestate, it is obvious that tlie claimant’s note was barred by the Statute of Limitations as against his estate. Tlie evidence upon tlie question whether the payment was made by Petrie or by or for the decedent was, perhaps, conflicting, and yet a careful examination shows that it was sufficient to sustain the finding of the Surrogate’s Court that the payment was made by Petrie and not by or for the decedent. We think this finding was fairly sustained by the evidence, and hence the Surrogate’s Court was justified in holding that the claim of the claimant was barred by the Statute of Limitations.

While where a payment of interest was made upon a promissory note by tlie maker in the name of and as agent for another who was liable thereon, it was held that a subsequent recognition and approval of the act by the other, with full knowledge of the facts, was, as to the Statute 'of Limitations, equally binding upon him as a payment made by himself, and that it was immaterial whose money was used in making the payment (First Nat. Bank of Utica v. Ballou, 49 N. Y. 155), yet it lias also been held that where one of three makers of a joint and several promissory note, who in fact signed it as a surety, upon being applied to for payment, requested the payee to tell the principal that he must make a payment thereon, and that he, the surety, said so, and the payee made the statement to the principal as requested, who promised to and did subsequently make a payment which he reported to the surety, who said it was all right, it was held that these facts did not show an authority conferred upon the principal to make a payment as agent of the surety, so as to take the case as to the latter out of. the Statute of Limitations, and also that they failed to establish a ratification of the pay-anent. (Littlefield v. Littlefield, 91 N. Y. 203.) In McMullen v. Rafferty (89 N. Y. 456, 459) Earl, J., said: “ But it is the settled law of this State that payments made by one joint contractor cannot •save from the Statute of Limitations a claim against another joint contractor, and that payments made by the principal debtor cannot save from the statute a claim against the surety; and it maltes no •difference that the payments were made with the knowledge of the •other party liable for the same debt. To make payments effective against a party to save a claim from the statute, they must have been made by him or for him by his authorized agent. One joint contractor may make payments as agent for all the contractors, or the principal debtor may make payments for and in the name of his surety as his agent, or payments may thus be made in the name of all the joint contractors, or of the surety, without previous authority, but be subsequently ratified, and in all such cases the running of the statute may be prevented. But in all cases, to make the payments effective, they must, by previous authorization •or subsequent ratification, be the payments of the party sought to be affected by them.”

Upon the facts as found by the Surrogate’s Court, there is nothing in any of these cases which would have authorized the court to hold that the intestate made any payment which would relieve the •debt, as against him or his estate, from the bar of the statute. Under the facts found, and- the principles of law applicable to this ■question, we think the Surrogate’s Court was clearly justified in its ■conclusion that the claimant’s demand was not as against the deced■ent’s estate relieved from the bar of the Statute of Limitations by the delivery of the load of hay in January, 1887.

"We have examined the several exceptions of the appellant to the admission and rejection of evidence, to which our attention has been directed by him, but have found none that require a reversal of the ■portion of the decree appealed from. "While it may be admitted that some of the rulings as to the admission and rejection of evidence are, at least, of doubtful propriety, still, as the only material issue ■which was litigated by the parties was whether the decedent made ■fhe payment of-January, 188-7, or procured it to be made under such circumstances as to relieve ihe note from the bar of the statute as against him or his. estate; and as the evidence to which the appellant’s exceptions were taken related wholly to matters that were collateral, immaterial, or did not bear npon the issue between the ■parties, the rulings were, if erroneous, harmless, and hence do not ■constitute a sufficient cause for reversal.

These considerations lead us to the conclusion that the decree of ■the Surrogate’s Court should be affirmed. ■,

HaediN, P. J., and Merwikt, J., concurred.

Decree of the Surrogate’s Court of Herkimer county affirmed, with costs.


text:
    John Weston, as Surviving Partner, Respondent, v. The City of Syracuse, Appellant.

      Municipal corporation — estoppel as to ultra vires act — action for the contract price of labor and materials — questions of modification, of waiver, and of nonperformance a/re for the jury — rescinding a contract on the ground of fraud — if not done at once, the contract is binding.

    Although a municipal corporation may set up as a defense to an action upon a contract, alleged to have been made by it, its own want of power to contract, yet, as against those innocently dealing with it, and in good faith parting with property and expending money for its benefit, it may be estopped from availing itself of irregularities in the exercise of power conferred upon it.
    In an action brought against a municipal corporation to recover the contract price for materials furnished and labor performed in the construction of a sewer in the streets of themunicipal corporation, the questions whether the common council of such corporation, with a full knowledge of all the facts in relation to the condition of a portion of the sewer, had modified the contract between the parties in regard to it, and waived any objection which existed as to the manner of its performance, in so far as it did not conform to the original contract, and whether, except as it had been modified or waived, the provisions of the original contract had been substantially performed by the plaintiff, are, upon contradictory evidence, questions of fact, and as such are properly submitted to the jury for its determination.
    In an action brought against a municipal corporation upon a contract providing for the construction of a sewer, by the terms of which the plaintiff agreed that no pavment should be made thereon until the cost of the materials furnished and services performed thereunder was assessed upon and collected from the taxpayers liable to local taxation therefor, it appeared that the contractor had performed his work according to his contract, and had no duty remaining to discharge.

      Held, that he had then a right to rely upon the implied obligation of the city to use with due diligence its own agencies in procuring the means to satisfy his claim, and that for an omission on the part of the city to diligently set in operation its several agencies in order to place in its hands the funds necessary to enable it to pay its obligations under such contract, the city became liable to pay such damages as the contractor might suffer by reason of its neglect of duty.
    In order to rescind a contract on the ground of fraud there must not only be a disaffirmance of it at the earliest practical moment after discovery of the fraud, but a return of all benefits that have been received under it.
    The receiving of any. benefit under a contract after knowledge of the fraud, or the changing of the condition of the property, which is the subject-matter of the contract, is a ratification of the contact.
    Assuming a contactor to have secured a contract from a municipal corporation by inducing the officials concerned in its award to act corruptly, it is, notwithstanding that fact, operative as against the contractor, unless the corporation ' sees fit to disaffirm it, and it is not necessary that the corporation should ratify the contract, inasmuch as if the contractor enters upon its performance, the city cannot escape liability for the work done, or for a breach thereof subsequently committed by it, in the absence of proof that the contact was dis-affirmed by it upon the discovery of the alleged fraud.
    Appeal by the defendant, The City of Syracuse, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 4th day of May, 1894, upon the verdict of a jury rendered after a trial at the Onondaga Circuit, and also from an order entered in said clerk’s office on the 4th day of June, 1894, denying the defendant’s motion for a new trial made upon the minutes.

      Charles E. Ide, for the appellant.

      George ,E. Sears, for the respondent.
   Martin, J.:

This action was brought to recover an amount claimed to be due upon a contract between the plaintiff and his deceased partner on the one part, and the defendant on the other, for furnishing the materials and performing the labor required for the construction and completion of a forty-eight inch brick sewer in Oakwood avenue from Oakwood Cemetery to Kennedy street, in Kennedy street from Oakwood avenue to Cortland avenue, in Cortland avenue from Kennedy street to South avenue, and in South avenue from Cortland avenue to tlie Onondaga creek. Tlie contract between the parties ivas in writing. The plaintiff alleged that it had been fully and completely performed according to its terms, except where changes were made by the defendant’s engineer and surveyor under the powers conferred upon him by such contract.

After the plaintiff’s firm had commenced and constructed a portion -of tlie sewer described, an investigation was had by the officers of the defendant, whereby it was discovered that some portions of the work were not in strict compliance with tlie provisions of the contract, but it also appeared that where there were changes or deviations they were made by tlie direction and under the immediate supervision of tlie engineer and inspector of the defendant. After such investigation the defendant’s common council duly passed a resolution, which was approved and signed by the mayor, requiring the contractors to complete the portion already built in accordance with the terms of the contract, except, however, that they were not required to change the grade of the work as it then existed. The invert portion was to remain as then laid. The contract was thereby declared to be amended and modified to that extent, and the remaining portion of the sewer was to be constructed in accordance with the terms of such contract without modification.

The contractors thereupon resumed the work, which had been suspended during the investigation, completed the remainder in substantial accordance with tlie terms and provisions of the contract, and also performed some extra work for the defendant. On July 25, 1892, and after tlie final completion of such -sewer, the •defendant’s commissioner of public works made tlie plaintiff’s final -estimate or account, by which it appeared that there was $1,933.41 •due upon such contract and for extra work done by the contractors, .and attached thereto tlie following certificate: “ I hereby certify that for a distance of 1,453 feet from Onondaga creek the work was done in accordance with a resolution adopted by the common council 29 July, 1890 ; the next 1,000 feet was done in accordance with the contract and specifications, except in the matter of grade ; at the beginning of the 1,000 feet the sewer is about two feet above the grade established by the original map, and at the end of the 1,000 feet it is at said grade. The remaining portion of the sewer ivas ■completed in accordance with the contract and specifications.”

Tlie proof disclosed that the 1,000 feet mentioned in the foregoing certificate was constructed under and by the direction of the defendant’s city engineer and inspector. It also appeared that the grade of the 1,000 feet, so far as it was not made to conform to-the original contract, necessarily had to be changed or there could he-no connection with or .outlet through the portion already constructed and adopted by the resolution of the common council. The evidence of the plaintiff was to the effect that the contract, between the parties, as modified by the resolution of the common council, passed July 29, 1890, was substantially complied with, while that of the defendant tended to show that' there were some other defects in the construction of the portion of the sewer as to which the investigation was had, aside from those mentioned in the resolution modifying such contract. Upon that question there was a, conflict in the evidence. The jury found for the plaintiff, and there was, we think, sufficient evidence to sustain its verdict.

Without incumbering this opinion with any further history of the details of the proceedings had, or course of action pursued by the parties to this contract, it may be observed that under the evidence and findings of the jury it is quite obvious that the contractors endeavored to honestly comply with the terms of the original contract, the instructions of the city officers or employees having the work in charge, the usages that had been established in the performance of such work, and with the contract as modified. Therefore, if there were any defects in the work, they arose from the-fault of the city, its officers or employees, and, consequently, the-equities seem to be clearly with the plaintiff, and the judgment should not be disturbed unless some error was committed upon the trial requiring its reversal. This leads to an examination of the questions presented by the appellant as grounds upon which the judgment should be reversed.

The appellant contends that the common council had no authority to modify the contract between the ¡parties, and that, therefore, the court erred in not granting its motion for a nonsuit. We think this contention cannot be sustained. (Meech v. The City of Buffalo, 29 N. Y. 198 ; Moore v. City of Albany, 98 id. 396 ; Mulholland v. Mayor, etc., of New York, 113 id. 631; Brady v. Mayor, etc., of New York, 132 id. 115 ; Voght v. City of Buffalo, 133 id. 463.) Nor do we think the case of Bonesteel v. The Mayor, etc., of New York, (22 N. Y. 162) aids the defendant. That case is clearly distinguishable from the case at bar, as is pointed out in Moore v. Mayor (73 N. Y. 248). In the latter case it was in substance held that, although a municipal corporation may set up, as a defense to an action upon a contract alleged to haye been made by it, its own wantóf power to contract, yet, as against those innocently dealing with it, and in good faith parting with property, and expending money for its benefit, it may be estopped from availing itself of irregularities in the exercise of power conferred. (Smith v. City of Utica, 6 N. Y. Supp. 792.).

Thus, we are led to the conclusion that the court committed no error in refusing to nonsuit the plaintiff upon the ground already considered, and that it properly submitted to the jury the question whether the common council, with a full knowledge of all the facts in relation to the condition of the portion of the sewer complained of, had modified the contract between the parties and waived any objections that existed as to the manner of its performance, in so far as it did not conform to the original contract, and whether, except as it had been modified or waived, the provisions of such original contract had been substantially performed by the plaintiff.

The appellant also contends that the action was improperly brought; that by the contract the plaintiff agreed that no payment should be made until the cost was assessed upon and collected from the taxpayers liable to local taxation for the construction of the sewer, and that an action for the contract price cannot be maintained. In Reilly v. City of Albany (112 N. Y. 30, 42), where a similar question arose, Rugeb, Oh. J., in delivering the opinion of the court,, said: “ When the contractor had performed his work according to his contract he had no duty remaining to discharge, and then had a. right to rely upon the implied obligation of the city to use with due diligence its own agencies in procuring the means to satisfy his claims.. It could not have been supposed that he was not only to earn his compensation, but also to set in motion and keep in operation the-several agencies of the city government, over whom he had no control, to place in the hands of the city the funds necessary to enable-it to pay its obligations. That was a power lodged in the hands of the city, and the clear intent of the contract was that it should exercise it diligently for the purpose of raising the funds necessary to pay for the improvement. For an omission to do so it would ’.become liable to pay such damages as the contractor might suffer by reason of its neglect of duty.” (Cumming v. Mayor, etc., of Brooklyn, 11 Paige, 596; Sage v. City of Brooklyn, 89 N. Y. 189 ; McCormack v. City of Brooklyn, 108 id. 49 ; Donnelly v. City of Brooklyn, 121 id. 9.) We think the doctrine of these cases justified the trial court in holding that this action could be maintained.

Again, it is contended that the court erred in declining to charge: “ If the jury find that the completion of the contract as originally made has not been certified by the City Engineer, or Commissioner of Public Works, the plaintiff cannot recover.” It will be perceived that this request related to the original contract, and did not include the contract as modified by the common council. We think the court was justified in refusing to charge as requested.

• The only remaining question raised by the appellant relates to the rejection of evidence. On the cross-examination of the plaintiff, the defendant offered to show that he procured the vote of one member of the common council for the resolution modifying the contract by corrupt means. To evidence which it was claimed would tend to show that fact, the plaintiff objected on the ground that it was incompetent, immaterial and irrelevant, and that the resolution was duly adopted and approved by the mayor in accordance with the law. This objection was sustained, and the defendant excepted. It may be observed in passing that this offer was made and proposed evidence excluded during the cross-examination of the plaintiff, who was a witness in his own behalf. The court might well have excluded the evidence upon the ground that the defense of fraud should be proved, if at all, after the plaintiff rested. Moreover, it was conceded upon the trial that an investigation as to the question of bribery or fraud was had in December, 1890, so that if there was any fraud on the part of the plaintiff in obtaining a modification of this contract, it then became known to ■the defendant. Notwithstanding such knowledge upon the part of the defendant, and long after its discovery of such fraud, the time for the completion of the work was extended by it until December 25, 1891, the defendant thereby recognizing the modified contract as being in full force and effect. It is a well-established principle ■of law that in order to rescind a contract on the ground of fraud, there must not only be a disaffirmance of it at the earliest practical moment after discovery, but a return of all that has been received under it. The receiving of any benefit under a contract after knowledge of the fraud or the changing of the condition of the property, which is the subject-matter of the contract, is a ratification of it. (Cobb v. Hatfield, 46 N. Y. 533; Gould v. Cayugu County Nat. Bank, 86 id. 75 ; Baird v. Mayor, etc., of New York, 96 id. 576.) In Devlin v. Mayor (4 Misc. Rep. 106), where a similar question arose, it was held that, assuming the contractor to have secured the ■contract by inducing .the officials concerned in its award to act corruptly, it was, notwithstanding that fact, operative as against him, unless the defendant saw fit to disaffirm it; that it was not necessary that it should ratify the contract, and having entered upon its performance, it could not escape liability for the work done or the breach subsequently committed in the absence of proof that the ■contract was disaffirmed by it upon the discovery of the alleged fraud. We think the principle of these authorities is sufficient to uphold the rulings of the trial judge upon this question.

Having thus considered all the questions raised by the learned counsel for the appellant in his brief, and having found no errors therein sufficient to justify us in disturbing the judgment, it follows that it should be affirmed.

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

Judgment and order affirmed, with costs.


text:
    Joseph I. Sayles and Others, Respondents, v. Nicholas J. De Graff and Others, Appellants.

      üefereés findings — appeal therefrom — parties liable to an attorney for services rendered and disbursements made.

    The findings of a referee on questions of fact should not be disturbed unless it appears that the proof so clearly preponderates in favor of a contrary conclusion that it can be said with reasonable certainty that the referee erred in his ■conclusions.

      Where a person comes to the office of an attorney to consult with him in regard to a case, and. informs the attorney that he comes as a representative of certain parties who are prosecuting the case, and will pay the attorney for his services, and the attorney afterwards sees such parties and communicates to them, what he has been told by such person, and they practically concede that such, statement is correct and promise to pay the attorney for the services he may render and the disbursements he may make in the case, the attorney is entitled to recover for his services rendered and disbursements made'.in the case against the persons prosecuting the same.
    Appeal by the defendants, Nicholas J. De Graff and others, from, a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Oneida on the 9th day of March, 1894, upon the report of a.referee.

      Houston c& Herrick, for appellants O’Connor and Perry.

      Ed. J. Maxwell, for appellants Clute, Siver and De Graff.

      Soples, Seo/rle & Soples, for the respondents.
   Martin, J.:

This action was brought to recover for professional services performed by the plaintiffs and for disbursements paid by them in the case of The People ex rel. Ballou v. Wendell.

The plaintiffs were lawyers doing business under the firm name of Sayles, Searle & Sayles at the city of Rome, N. Y. The testimony of Joseph I. Sayles, one of the plaintiffs, was to the effect that the defendant Clute came to the plaintiff’s office to consult with him in regard -to that case; that he was then informed by Clute that he came as the representative of the defendants; that they, the defendants, were prosecuting the case and would pay him for his services;. that afterwards he saw the other defendants and communicated to them what Clute had said; that they practically conceded that his» statement was correct, and that they promised to pay for such services and disbursements as should be rendered and made in that case.

If the evidence of this witness is to control, and the referee was authorized to give credit to his evidence, notwithstanding the evidence of the defendants, which was in direct conflict with it, then he was justified in making the findings and directing the judgment herein.

There was a direct and sharp conflict between the evidence of the witness Sayles and the witnesses called by the defendants. Several of the defendants were sworn as witnesses, and positively denied the truth of the testimony given by the witness Sayles as to the essential facts testified to by him as a basis for the recovery herein. If the evidence of the defendants was true, then obviously the judgment in this action is wrong. On the other hand, if the witness Sayles testified correctly as to what occurred, the judgment was authorized and should be sustained.

Upon this conflicting evidence the referee has found in favor of the plaintiffs. His findings should not be disturbed, unless it appears-that the proof so clearly preponderates in favor of a> contrary conclusion that it can be said with reasonable certainty that the referee-erred in his conclusions. (Baird v. Mayor, etc., City of N. Y., 96 N. Y. 567; Lowery v. Erskine, 113 id. 52, 55; Aldridge v. Aldridge, 120 id. 614, 617; Devlin v. Greenwich Savings Bank, 125 id. 756 ; The Phoenix I. Co. v. “ Hopatcong” and “ Musconetcong,” 127 id. 206, 212; Barnard v. Gantz, 140 id. 249, 253.)

"While the evidence in this case would have fully justified the referee in finding in favor of the defendants, still, we think he had the-right to rely upon the plaintiff’s testimony, and that under the rule stated we should not disturb the findings of the referee or the judgment entered thereon.

The appellants’ claim, that the defendants were acting for the veterans of Montgomery county, and that the action should have been brought and could have been maintained against them as an association, we think cannot be sustained. 1. The proof of the plaintiffs was to the 'effect that they were not employed by any association, but by the defendants, who agreed to pay them for their services and disbursements; and 2. An action could not have been maintained against the veterans of Montgomery county as an unincorporated association. (McCabe v. Goodfellow, 133 N. Y. 89.)

The judgment must be affirmed, with costs.

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

Judgment affirmed, with costs.


author: MaetiN, J.:

text:
    John H. Law, by his Guardian ad Litem, Phillis Law, Appellant, v. Willey J. P. Kingsley, Respondent.

      Personal injuries caused by a defect in a sidewattc — no right of recovery against the owner of the abutting lot — when the municipality is alone liable.

      A municipal corporation is liable to persons using its streets or sidewalks where injury results from its neglect to keep them in a proper state of repair, notwithstanding the fact that a duty to repair such sidewalks is imposed upon the property owners in front of whose premises the injury occurs.
    "Where a duty is imposed by its charter upon a municipality, in which an accident occurs, to keep its streets in good and safe condition, an action is not maintainable against a lot owner to recover the amount of damages sustained by a person who, in consequence of a defect in a sidewalk in front of his lot was thrown down and injured; under such circumstances the primary duty of constructing sidewalks and keeping them in repair rests upon the municipality, and it alone is liable to persons injured through defects therein.
    Appeal by the plaintiff, John PI. Law, by his guardian ad litem, Phillis Law, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Oneida on the 20th day of March, 1894, upon the dismissal of the complaint directed by the court after a trial at the Oneida Circuit before .the court and a jury.

      Sayles, Searle & Sayles. for the appellant.

      J. S. JBalcer, for the respondent.
   MaetiN, J.:

This action was brought to recover damages alleged to have been , ■caused by the negligence of the defendant in omitting to keep the sidewalk on a street adjoining his lot in the city of .Rome, N. Y., in proper repair, whereby the plaintiff fell and was injured. ' The plaintiff was nonsuited. It was conceded that when it was originally built, the walk where the injury occurred was properly constructed. Hence, the only ground upon which the plaintiff claimed to recover was, that the defendant had neglected to keep the sidewalk in a proper state of repair.

On the trial the plaintiff proved that the defendant owned the premises adjoining the street or sidewalk where the injury occurred; that it was included in the corporation tax district of the city ; that the walk was built by him thirteen years before, and had been used as one of the public sidewalks of the city since that time, and that while passing over it in 1893 the plaintiff’s foot was caught between the boards of the walk, he fell and broke his left arm. As there was no evidence in the case to show that the sidewalk was not built by the direction of the common council of the city of Rome, it is to be presumed that it was made under the direction and with the knowledge and consent of the city, rather than that it was constructed without authority or was a public nuisance, especially as the city had acquiesced in its use for more than twelve years before the injury occurred.

Assuming, as we think we must, .that this sidewalk was properly constructed under the direction or by the consent and acquiescence of the city of Rome, the authorities cited by the appellant relating to cases of public nuisance or wrongful interference with a street have no application. Therefore, the only question here presented is whether, if this sidewalk was constructed under the direction, with the knowledge, acquiescence or consent of the city, the defendant was liable to the plaintiff for any injury he sustained by reason of its being out of repair. It seems to be well settled that a municipal corporation is liable to persons using its streets or sidewalks, for damages arising from a neglect to keep them in a proper state of repair, notwithstanding the fact that a duty to repair such sidewalks is also imposed upon the property owners in front of whose premises the injury occurs. (Russell v. Village of Canastota, 98 N. Y. 496; Pettengill v. City of Yonkers, 116 id. 558; Saulsbury v. Village of Ithaca, 94 id. 27; Bullock v. Mayor, etc., of New York, 99 id. 654; Pomfrey v. Village of Saratoga Springs, 104 id. 459 ; Jewhurst v. City of Syracuse, 108 id. 303.)

Section 1 of title 6 of the charter of the city of Rome, as amended by chapter 49 of the Laws of 1871, declares: “ The common council shall be commissioners of highways in and for the portion of said city included in the ‘corporation tax district,’ and shall have all the powers and discharge all the duties of commissioners of highways in the towns of this State, subject to the provisions of this act. They shall also have power within said limits to make and maintain crosswalks, and to regulate, repair, amend, clean and prevent the incumbering of the streets, alleys, highways, bridges, side and crosswalks, drains, sewers, wharves, piers and docks; to compel every person to clean the snow, ice and dirt from off the sidewalks and waterways, and to sweep and clean the sidewalks, waterways and street in front of the premises owned or occupied, in whole or in part, by such person, and to keep such sidewalk in good repair, and to direct the removal of dirt from the streets, .and to enforce the above by suitable ordinances and penalties.”

Section 15 of the same title, as amended by chapter 384 of the Laws of 1881, provides: “ It shall in all cases be the duty of the owner of any lot or piece of land within the corporation tax district ’ to keep the sidewalk adjoining his lot or piece of land in good repair, and also the duty of every owner or occupant to remove or clean away snow or ice or other obstruction from such sidewalk, and to keep half .the street or alley adjoining the same free from obstruction or obstacle. The city of Nome shall not be liable for any injury caused from such sidewalks being out of repair or unlawfully obstructed or dangerous from snow or ice, unless actual notice of the unsafe or dangerous condition thereof has, prior to such injury, been given to the mayor or common council. The superintendent of streets shall have power to repair any sidewalk when the owner of the property shall neglect to repair the same for five days after written notice so to do has been served on him personally or at his residence, if his residence be known and he live in the city, or otherwise by being left 'on the premises, and no ordinance for the same need be passed or notice be published or posted. The superintendent of streets shall also have power to clean any sidewalk from snow, ice or other obstruction, where the same shall have remained for twenty-four hours. The-street superintendent shall have the power to collect the expenses of any such work or repair from the owner of the property, and he shall send such owner, if his address be known, a bill of the amount thereof. The expense of such cleaning may be collected from either the owner or occupant of the property in like manner. If such expense is not paid, the street superintendent shall file his affidavit showing in detail the actual cost thereof, and the property in front of which the work, repairing and cleaning was done, with the city chamberlain, and he shall add the amount thereof, with interest at fifteen per cent from the time such affidavit was filed, to the .amount assessed against such land for the next general city tax, and the whole amount of such assessment shall be collected as is provided in reference to general city taxes.”

In City of Rochester v. Campbell (123 N. Y. 405), where the plaintiff’s charter in all its essential particulars is like that of the city of Home, it was held that an action was not maintainable against & lot owner to recover the amount of a judgment against the city for damages sustained by one who, in consequence of a defect in the sidewalk in front of such owner’s premises, had been thrown down and injured; that, as a duty was imposed upon the municipality by its charter to keep its streets in good and safe condition, and so, through its common-law liability, abundant indemnity was provided for any damages caused by defective streets, the purpose of the provision was not the protection of the public or individuals, but to furnish the municipality, by a proper distribution of burdens, the means of discharging its duties, and that the lot owner could only be made liable for any expense the corporation incurred in making the necessary repairs. In that case it was also held that the primary duty of constructing sidewalks and keeping them in repair rested upon the municipality, and that it alone was liable to persons injured by reason of defects therein. See, also, Avery v. City of Syracuse (29 Hun, 537); Village of Fulton v. Tucker (3 id. 529); Moore v. Gadsden (93 N. Y. 12); Wenzlick v. McCotter (87 id. 127); Dill. Hun. Corp. (§ 1012); Hill v. City of Fond du Lac (56 Wis. 242); Knupfle v. Knickerbocker Ice Company (84 N. Y. 488); Weller v. McCormick (47 N. J. L. 397); Kirby v. Boylston Market Association (14 Gray, 249); Flynn v. Canton Co. of Baltimore (40 Md. 312); Heeney v. Sprague (11 R. I. 456); City of Hartford v. Talcott (48 Conn. 525); Eustace v. Jahns (38 Cal. 3); Jansen v. City of Atchison (16 Kans. 358); State v. Gorham (37 Maine, 451); Keokuk v. District of Keokuk (53 Iowa, 352); Taylor v. Lake Shore & M. S. Ry. Co. (45 Mich. 74), which are cited by Huger, Ch. J., in The City of Rochester v. Campbell (supra) as sustaining the doctrine of the non-liability of the lot owner to travelers or municipalities. In the further discussion of this question the court said: “We have thus referred at length to many of the cases holding the non-liability •of the lot owners, for the reason that there seems to have been quite a common impression, in which judges and. lawyers have shared, that abutting owners are in some way liable to an injured party for damages occasioned from their neglect to keep sidewalks in repair when that duty is in any way enjoined upon them. It seems to us that there could never have been any logical cause for such impression, and it seems it has no foundation in the reported cases. Any other conclusion than that reached by us would, we think, be most unfortunate, as it would tend to relax the vigilance of municipal corporations in the performance of tlieir duties in respect to the repair of streets and highways, and impose that duty^ upon those who might be utterly unable to discharge it. It would tend directly to demoralize the public service and lead to disorder, decay and impassability of the public highways.” The principle of these cases renders it quite manifest that the plaintiff cannot maintain this action, and that the court properly granted the defendant’s motion for a nonsuit.

Robinson v. Chamberlain (34 N. Y. 389), and other kindred cases cited by the appellant, which, in effect, hold that a public officer, or person, engaged to perform the duties of a public officer, is liable for negligence or malfeasance to any one sustaining special damage in consequence thereof, have no application here.

The judgment must be affirmed, with costs.

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

Judgment affirmed, with costs.