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    Theresa Maria Lund, Plaintiff, v. Masonic Life Association of Western New York, Defendant.

      Life insurance policy — expert testimony — proof of death — competent evidence against the beneficiary.

    It does not require expert testimony to describe a boil or wound or to tell where it is located or whether suppuration has taken place.
    Where a witness has had twenty-one and a half years’ experience as a nurse in a general hospital, in which he has attended upon the surgical operations which have taken place upon the men in the hospital during that time, he is sufficiently qualified to testify that a person was operated upon in his presence who had a suppurating abcess in the perineal section; that the doctor made three incisions in the perineal region and cut the abscess and uretha down to the bladder, and that subsequently the patient was again operated upon for contraction or constriction of the uretha.
    In an action brought upon a life insurance policy, the proof of death of the insured, as made by the beneficiary, who was of full age, or by her direction, and forwarded to the insurer, is properly received in evidence upon the trial, and the statements contained therein, in the absence of proof that they are false, incorrect or unauthorized, must be regarded as the admissions of the beneficiary and competent evidence against her.
    Motion by tbe plaintiff, Theresa Maria Lund, for a new trial on a case containing exceptions, ordered to be heard at tbe General Term in tbe first instance, upon tbe verdict of a jury rendered by direction of the court after a trial at tbe Erie Circuit on the 12th day of October, 1893.

      George W. Gothrcm, for tbe plaintiff.

      Daniel H. MoMillan, for tbe defendant.
   Haight, J.:

This action was brought upon two certificates issued by tbe defendant to Henning D. Lund in bis lifetime, in which tbe defendant undertook to pay to tbe plaintiff as tbe wife of Lund tbe sum of $2,000, upon tbe certificate issued in class B, and tbe sum of $3,000, upon tbe certificate issued in class C, upon satisfactory proofs of bis death, payments to be made by tbe association by an assessment upon its members, levied in accordance with its by-laws. Tbe certificates were dated June 23, 1890.

Upon the trial it was conceded that an assessment under the first certificate would have realized the amount thereof, and that an assessment under the second certificate would have realized $1,734.90. Lund died at the Buffalo General Hospital in the city of Buffalo on the 11th day of May, 1891. The defense interposed was false and fraudulent statements of the assured in his application, by which the association was misled and induced to issue to him the certificates. In his application he stated : “ I am correct and temperate in my habits, and to the best of my knowledge and belief have no injury or disease, constitutional or otherwise, that will tend to shorten my life; am now in good health and able to gain a livelihood, and I promise, if accepted, to conform in all respects to the by-laws, rules and regulations now in force or which may hereafter be adopted by. the association or its board of directors.” In answer to the question whether he -had ever had stricture, he answered “ No.” To the question, “ Have you ever had any serious personal injury, or undergone any surgical operation ? ” he answered, “ Yes; ” that he was shot in the knee and the shell lodged there; that he was in the hospital seven weeks, but that it did not trouble him at the time of his application.

The plaintiff in her proofs of death states that he “ had operation at hospital about three years ago; was there one week; had operation for something about his water; was well when he went to the hospital except what he told me was a rupture.” And in answer to the question of, "What was the immediate cause of death ? ” answered, I think he died from the operation. "Was at the hospital from Friday till Monday, the 11th of May.” As a part of the proofs of death she furnished a certificate of the attending physician at the time of his death, who states that the deceased was afflicted with a chronic disease of the urinary organs; that on the 9th day of May, 1891, he “ dilated an old cicatrix made about two years before in an external urethrotomy; he became comatose following convulsions and died on the 11th. Post mortem showed extensive disease of the bladder, uretha, kidneys and brain.”

Upon the trial the application was introduced in evidence by the defendant, and exception was entered by the plaintiff to its reception, "ffe think that the evidence establishes that it was his application. Tiffany, the general agent and secretary of the defendant, identified the application as the one upon which the certificates were issued. Leonard, his clerk, testified that the application was filled out in his handwriting, and that he saw Lund sign his name thereto, but that he had never seen him but at that time and had no knowledge that he was the Lund now in controversy. But Brown, the physician and surgeon, who examined him for his insurance, testified that Lund brought the application to him with his name subscribed thereto, and that he added thereon his examination and certified his approval thereto, thus conclusively identifying the individual and his application.

Joseph Winters was sworn as a witness for the defendant, and testified that he resided in Buffalo and had for nine and a half years, and that during all of that time he had been connected with the Buffalo General Hospital as an attending orderly; that he attended the surgical operations on the men that were carried on there during that time, and that he had hospital experience in Germany for over twelve years before coming here; that in February, 1888, Henning'D. Lund was a patient in the hospital and was operated upon surgically by Dr. Park; that he was present at the operation; that there was a suppurating abscess in the perineal section; that Dr. Park made three incisions, cut the abscess and the uretha down to the bladder; that the incisions were made in the perineal region; that he had a talk with the patient and he said that he was operated upon two years before in the old country; that he prepared the patient for the operation; and that at that time Lund said to him he had an abscess and a stricture; that the patient subsequently left the hospital, and again returned in 1891, and was again operated upon for contraction or constriction of the uretha; and that in a few days thereafter he died at the hospital. Objections and exceptions were taken by the plaintiff to much of the evidence of this witness, upon the ground that he was not a physician and not competent to testify as an expert. But it will be observed most of his testimony pertains to what was done in his presence. It is true, he speaks of a suppurating abscess, and tells where it was located, but this any witness could describe as well as a physician. It does not require an expert to describe a boil or a wound and tell where it is located, or whether suppuration has taken place.

In the last operation lie states it was for contraction or constric-' tion of the uretha. It possibly may be said that this answer could have been made only by an expert. We do not regard it as very material, for it has reference to the last operation just preceding his death, and it does not necessarily tend to show that he had stricture or a surgical operation before the application for insurance was made. But, assuming it to be material, we are inclined to the view that a new trial ought not to be granted because of the admission of this evidence. For we think that the witness’ experience of twelve years in Germany and nine and a half years in this country as a nurse in the General Hospital, in which he attended upon the surgical operations produced upon the men in the hospital during that time, sufficiently qualified him to give the testimony objected to.

Again, it is contended that the proofs of death, including the physician’s certificate, ought not to have been received in evidence. But the plaintiff was of full age, acting for herself, and the proofs were such as were made out by her or by her direction, and forwarded to the association. No claim is made that any of the statements made in the proofs of death are false or incorrect, or that they were unauthorized. We think, therefore, that they must he regai’ded as her admissions, and competent as evidence against her.

This question has been recently fully considered in the case of The Buffalo Loan,, Trust & Safe Deposit Co. v. The Knights Templar and Masonic Mutual Aid Association (126 N. Y. 450, 455), in which Andrews, J., in delivering the opinion of the court, says that: “The presentation of the physician’s certificate that the deceased died from the cause stated, operated as an admission by the guardian that the fact was as stated. It derived its force from the fact that the claimant communicated to the defendant a statement of the cause of death which, if true, vitiated the policy. The statement was embodied in a physician’s certificate. If it had been contained in the guardian’s own statement, or that of any non-professional person, it would equally have been an admission of the fact stated. The certificate was a part of the proofs furnished.” It is true, in that case, the court finally held that the beneficiary, being an infant, was not bound by the admissions of its guardian, and for that reason the court sustained the recovery. But, as we understand the case, it was distinctly held that in case the beneficiary had been an adult lie would have been bound by the admission contained in the proofs of death.

The motion fora new trial should be denied, with costs, and judgment ordered for the defendant upon the verdict.

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

Plaintiffs motion for a new trial denied, with costs, and judgment ordered for the defendant upon the verdict.


source: Caselaw Access Project

author: Haight, J.:

license: Public Domain

text:
    Mary Carr, as Administratrix, etc., of Joseph Carr, Deceased, Respondent, v. Michael Sheehan and Another, Appellants.

      Negligence — duty of the owner of a dangerous sand bank to warn persons carting sand therefrom — when the drawee' of sand therefrom is guilty of contributory negligence.

    Where a person owning a sand bank knows that it is in a dangerous condition, it is his duty to warn a person buying and carting sand therefrom.
    Where a person has been in the habit of drawing sand from sand banks for years, and has seen sand banks cave in, and has knowledge of the dangerous condition of a sand bank from which he is loading his cart with sand, and yet goes to work and continues to work at such bank under such circumstances, he assumes the risk of the position, and if an accident occurs he is guilty of contributory negligence, and is not in a position to charge negligence upon the vendor of the sand.
    Appeal by the defendants, Michael Sheehan and another, from a judgment of the County Court of Monroe county in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 5th day of April, 1893, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 5th day of April, 1893, denying the defendants’ motion for a new trial made upon the minutes.

      George W. Hall, for the appellants.

      G. D. Kiehel, for the respondent.
   Haight, J.:

This action was brought to recover damages for a personal injury sustained by the plaintiff’s intestate. The suit was originally brought by him, but he died alter the rendition of the verdict.

It appears that the defendants were the owners of a sand bank near the village of Brighton, N. Y., and were engaged- in selling sand therefrom by the load. On the 3d day of August, 1892, Carr went to the defendants’ sand bank and got a load of sand. On the same- day he returned for a second load, and whilst engaged in shovelling the sand into his wagon the bank caved in, covering his legs with sand up to his body, causing the injury for which damages are sought to be recovered.

Upon the question of the defendants’ negligence there is some •conflict in the evidence, which doubtless raised a question for the jury upon that branch of the case.

Carr testified that when' he went back for the second load he stated to the defendant Michael Sheehan that he wanted some coarse sand; that the other was too fine, and that Sheehan said, Drive right around here where the sand lay in the bank. Keep out this way off the sand so that you can take sand clean from the bottom, without running over it and trampling it down, and when I got where he wanted me he said £ Whoa,’ and the team stopped. I then jumped out and commenced to shovel as fast as I could. I drove in between the sand bank and dirt. It was dug down a little below the top and I drove pretty close to that. I should think twelve or thirteen feet from the bank.” He further testified that the first thing he knew the bank came down from the top and knocked’him back against the wagon.

The defendant Michael Sheehan testified that he saw the plaintiff on the day of the accident, when he came after this load of sand, and told him ££ The bank was dangerous up in the place where he was, and to get out, and he said, £No, he wouldn’t; he would stay there,’ and I said, You want to get down, it is dangerous and may happen to fall down.’ He turned his horses a little out from there, and I told him that would not do, to get out, and he said, No, he wasn’t going to move out for me or anybody else; he would stay there.’ ” Two other persons were present who corroborate the defendant as to his warning that the bank was dangerous. The defendant further denies that he told the plaintiff to stop his team at that place. Carr admits that at the timé he went for the first load the defendant said something, but he does not recollect what it was. He, however, denies that at the time he went for the second load anything was said to him in reference to the bank being dangerous. If the defendant knew that the bank was dangerous it was doubtless his duty to warn Carr, and as to whether he did so was a question of fact for the jury.

Upon the question of Carr’s contributory negligence we have more trouble. He testified that he had been in the habit of drawing sand from sand banks for years, and had seen banks cave in at previous times when he had been drawing sand. He, therefore, knew of the liability of banks of that character to cave. He further testified that the bank was nearly perpendicular, and that at the top there was a little projection. Speaking in reference to the first time he was there, he said the bank was straight up and down, but he did not see any reason to apprehend danger, but when he returned he says, “ I did when I came back for the second load.” And in answer to the question as to whether the bank was in the same condition when he went in for the second load, he replied, “ It was worse; ” that he noticed that the bank was overhanging more before he went underneath it. But, notwithstanding, he went under where the bank hung over; that the bank overhung more because the defendant had knocked down the sand before he went in and he obseiwed that fact, and concludes by saying, “ I saw it was not safe.” It thus appears that he knew the condition of the bank — knew that it was liable to cave in, and yet he went to work loading his wagon under these circumstances. "We are inclined to the view that he assumed the risk and took the chances and was, therefore, guilty of contributory negligence. . It does not appear that the defendants knew anything more about the bank than he. It was before his eyes. He could see its height; that it was perpendicular and that it was composed of sand. He was familiar with sand banks and had for years worked in drawing sand therefrom, had seen them cave and on this occasion knew that the bank was not safe.

In Marsh v. Chickering (101 N. Y. 396—399) it was said: “ Where the servant has equal knowledge with the master as to the machinery in use or the means employed in the performance of the work devolving upon him and a full knowledge of existing defects, it does not necessarily follow that the master is liable for injuries sustained by reason of the use thereof.”

In 2 Thompson on Negligence, 1009, it is said: “ The master is under no higher duty to provide for the safety of the servant than ■the servant is to provide for his own safety. It' follows that if the knowledge or the ignorance of the master and that of the servant in respect of the character of the machine are equal, so that both are either without fault or in equal fault, the servant cannot recover damages of the master.” .

The relation of master and servant did not exist between Carr and the defendants, but he ap,pears to have had equal knowledge with them in reference to the condition of the bank, and is, consequently, not in a condition to charge negligence upon them and at the same time excuse himself. It follows that the defendants’ motion to dismiss the complaint should have been granted.

The judgment and order appealed from should be reversed and a new trial ordered, with costs to abide the event.

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

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


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    Gilbert B. Brewster, Respondent, v. William R. Bates, Appellant, Impleaded, etc.

      Action to recover money loaned — a subsequent agreement, intended as a compromise, competent in evidence — joint debtors — Statute of Limitations suspended as to a joint debtor who has left the State.

    William R. Bates and Lemon D Coburn were co-partners engaged in the busi ■ ness of buying and selling oil. On July 34, 1866, they made, executed and delivered to Gilbert B Brewster an instrument of which the following is a copy:
    “ $3,541.36 Received of Gilbert Brewster twenty-five hundred and forty-one dollars and thirty-six cents, to operate with in buying and selling crude oil for him, and we are to pay said Brewster the principal and proceeds over and above the cost and trouble of buying and selling, use of tanks, &c “Addison, July 34, 1866. (Signed) COBURN AND BATES.”
    The money referred to in said instrument as having been received from Brewster was commingled with the other moneys which Bates and Coburn were using in the oil business. They thereafter purchased a quantity of oil, paying about five dollars a barrel therefor, and subsequently were compelled to sell the same for less than a dollar per barrel.
    The following February they paid Brewster the sum of $300.

      In 1872, Bates, who had in the meantime removed to the State of Michigan, had a conversation with Coburn and Brewster, as a result of which he drew up an instrument of which the following is a copy:
    “ Addison, Steuben Co., FT. Y., March 4, 1872.
    “I, Lemon D, Coburn, of Addison, Steuben co., FT. Y., hereby agree to pay Gilbert B. Brewster, of the same place, the sum of §1,500 for value received. It is understood between the parties in interest that this amount when paid is to reimburse said Gilbert B. Brewster in full for the sum of $2,541 advanced to Coburn and Bates. It is also understood that said sum is to be paid in land in Michigan, to be located in the name of said Brewster by fm. R. Bates, of East Saginaw, Michigan. Said land to be accepted from time to time as
    • located, and amount of value of each piece of land so accepted from time to time to be indorsed upon this agreement in satisfaction thereof. It is understood and agreed that the obligation for §2,541, signed by Coburn and Bates, shall hold good until this agreement is accomplished, or that if a portion of this agreement is accomplished, or, in other words, if this agreement is partially accomplished, said obligation shall hold good proportionally to the amount paid as above. It is further agreed that this agreement shall be carried out within two years from the date of this paper.”
    Such instrument was executed by Brewster and Coburn and delivered to Brewster Bates was asked to sign the paper, but declined to do so, for the reason that he was employed in the government land office in Michigan and did not want it to be known that he had located government land in his own name*. FTo land was, in fact, located and transferred to Brewster under this agreement and nothing was paid thereon.

      Held, that the transaction was, in effect, a loan by Brewster to Coburn & Bates of the sum of §2,541.86, whose return for the loan was to be the profits from the oil business;
    That the second agreement was intended as a compromise of the claim due to Brewster from Bates and Coburn, and that Bates, by assenting to the same, recognized his liability to Brewster for the principal loaned as still continuing;
    That such second agreement was properly received in evidence, upon the trial -of an action brought by Brewster against Bates and Coburn, as it tended to show how the defendants understood and construed the first agreement entered into by them
    The absence of one joint debtor from the State suspends the running of the Statute of Limitations against him although bis co-debtor has remained within the State, and each joint debtor, in respect to the defense of the Statute of Limitations, stands upon the facts of his own case.
    It does not follow, that because one of two or more joint debtors cannot interpose the Statute of Limitations as a defense to an action, the other may not, and section 457 of the Code of Civil Procedure has not changed the rule in such respect.
    Appeal by tbe defendant, William R. Bates, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Steuben on the 19th day of April, 1893, upon the verdict of a jury rendered by direction of the court after a trial at the Steuben Circuit.

      D. M. Dowrin, for the appellant.

      Horace D. Baldwin, for the respondent.
   Haight, J.:

The appellant and one Lemon D. Coburn were co-partners engaged in the business of buying and selling crude oil. On the 24th day of July, 1866, they made and executed the following instrument and delivered the same to the plaintiff:

“ $2,541.36. Received of Gilbert Brewster twenty-five hundred and forty-one dollars and tliirty-six cents, to operate with in buying and selling crude oil for him, and we are to pay said Brewster the principal and proceeds over and above the cost and trouble of buying and selling, use of tanks, &c.
“Addison, Jvdnj 24, 1866.
“ (Signed) COBIJRN AND BATES.”

It appears from the evidence that the money received from the • plaintiff was commingled with other moneys which the defendants, were using in the oil business, amounting to the sum of between $7,000 and $8,000 ; that shortly thereafter the defendants purchased a quantity of oil in tank, paying about five dollars per barrel therefor; that subsequently the oil decreased in value, and they were compelled to sell it for less than a dollar per barrel. That thereafter, and in February, they paid the plaintiff the .sum of $300.

It further appears that the defendant Bates about that time removed to the State of Michigan, where he has since resided; that in 1872 he visited this State and had a conversation with his former co-partner, Coburn, and the plaintiff; that he thereupon drew the following paper, which was executed by Coburn and the plaintiff, and delivered the same to the plaintiff.

“ Addison, Steuben Co., N. Y., Marrch 4, 1872.
“ I, Lemon D. Coburn, of Addison, Steuben co., N. Y., hereby agree to pay Gilbert B. Brewster, of the same place, the sum of $1,500 for value received. It is understood between the parties in interest that this amount when paid is to reimburse said Gilbert B. Brewster in full for the sum of $2,541 advanced to Coburn and Bates. It is also understood that said sum is to be paid in land in Michigan, to be located in the name of said Brewster by ¥m. R. Bates, of East Saginaw, Michigan. Said land to be accepted from time to time as located, and amount of value of each piece of land so accepted from time to time to be indorsed upon this agreement in satisfaction thereof. It is understood and agreed that the obligation for $2,541,. signed by Coburn and Bates, shall hold good until this agreement is accomplished, or that if a portion of this agreement is accomplished, or, in other words, if this agreement is partially accomplished, said obligation shall hold good proportion.ally to the amount paid as .above. It is further agreed that this agreement shall be carried out within two years from the date of this paper.”

It further appears that Bates was asked to sign this paper, but •declined to do so for the reason that he was employed in the government land office in Michigan, and did not want it to be known that he had located government land in his own name. No land was located and transferred to the plaintiff under this agreement, and nothing has been paid thereon.

We think the transaction described was in effect a loan by the plaintiff to the defendants Coburn & Bates of the sum of $2,541.36. It is true they received it to operate with in buying and selling crude oil for him,” but they agreed to repay to him the principal, and any proceeds over and above the cost and trouble of buying and selling. His use, therefore, for the loan of the money was to be the profits from the business, and to this extent he became interested, and his right to recover the use for his money depended upon the success of the investment; but .as to the principal, the agreement was to repay to him, and this promise was not made dependent upon their success in the speculation.

It appears that the defendants so understood and treated the contract, for they commingled the money received from the plaintiff with that received from other sources, and when they purchased oil they purchased it in their own names, and never reported that any particular quantity had been purchased on the account of the plaintiff. And again, in T872, when the second agreement was executed, it was expressly stipulated that their obligation for the $2,541 loaned to them should hold good until their agreement to pay $1,500 in lands to be located in Michigan should be accomplished, thus recognizing their liability for the principal. It is true that this agreement was not signed by the defendant Bates, but he drew it, and, therefore, knew of its contents. It was intended as a compromise of the claim that they owed the plaintiff. He himself was to make the payments by the locating of the lands which the plaintiff was to accept in satisfaction of the $1,500 which had then been agreed upon as the amount that should be paid. "We must, therefore, consider him as assenting to the arrangement there entered into, and as. then recognizing his liability to the plaintiff for the principal loaned as still continuing.

We think this agreement was properly received in evidence. It. tends to show how the defendants understood and construed the first agreement entered into by them. The right of, the plaintiff to. recover depends upon the first agreement. The second was but an attempt to compromise. The fact that the plaintiff consehted that-a verdict might be directed for the sum mentioned in the second contract does the defendants no harm, for it is less than the sum that, the plaintiff would have been entitled to under the first contract.

Upon the trial the complaint was dismissed as to the defendant Coburn, upon the ground that the Statute of Limitations had run so. far as the claim against him was concerned. It is now contended that the Statute of Limitations had also run as to the defendant. Bates because the defendants were jointly liable for plaintiff’s, claim. The question is thus presented as to whether in case of parties jointly liable, the Statute of Limitations will run against the claim where one remains in the State and the other has removed from and continues to reside out of the State.

In the case of Brown v. Delafield (1 Den. 445) it was held that in assumpsit against several defendants, it was no answer to a plea of the Statute of Limitations that one of them within six years from the accruing of the cause of action departed from the State and continued absent until the commencement of the suit. That all the-persons liable upon a joint contract must depart from the State in order to arrest the running of the statute against the demand. But. in Denny v. Smith (18 N. Y. 567) this doctrine was overruled, and it was held that the absence of one joint debtor from the State suspends the running of the statute against him although his co-debtor has remained within the State. And in Merritt v. Scott (3 Hun, 657-659) Davis, P. J., in delivering the opinion of the court, says : “ After much judicial conflict, it is the settled law of this State as to joint debtors, that in respect of the defense of the Statute of Limitations each stands upon his own bottom, and it, therefore, does not follow that because one of such debtors cannot interpose the statute as a defense, the others may not.”

It is claimed, however, that section 457 of the Code of Civil Procedure has changed the practice, and that the rule declared in Brown v. Delafield should be again adopted, but we do not so understand its provisions. The three preceding sections pertain to actions against two or more persons severally liable upon a written instrument. The section then provides: The last three sections do not affect a defense or other objection to a defendant growing out of the failure to join in the action two or more persons jointly liable ; and, as regards the other parties to the action, persons jointly liable are regarded as one party for every purpose contemplated by those sections.” The revisers appear to haye regarded this section as superfluous, but, in view of the express repeal of the Laws of 1832, chapter 276, and subsequent amendatory acts, by chapter 417, Laws of 1877, by which the plaintiff was allowed to sue in one action the various parties to a bill of exchange or promissory note, deemed it best to insert it. (See revisers’ note.) It is thus obvious that it was not inserted for the purpose of effecting the change contended for by the appellant.

The judgment appealed from should be affirmed.

Dwight, P. J., Lewis and Bradley, JL, concurred.

• Judgment appealed from, affirmed.


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    Isabella M. Baird, as Executrix, etc., of John Baird, Deceased, Respondent, v. William Baird, Appellant, Impleaded with Another. Isabella M. Baird, as Executrix, etc., of John Baird, Deceased, Appellant, v. James C. Baird, Respondent, Impleaded with Others.

      Foreclosure of a mortgage — evidence of the declarations of the mortgagee — effect of a seal on a written instrument — Code of Civil Procedure, § 840 — evidence as to the contents of hooks.

    In an action brought to foreclose a mortgage, where the plaintiff is the personal representative of the mortgagee, and is not a purchaser or assignee for value of the mortgage, the declarations of her testator, made during the time that he was the holder and owner of the mortgage, are competent evidence.
    Formerly a seal upon an instrument imported consideration, and such presumption could not be rebutted so as to invalidate the instrument; and such is still the effect of a seal upon executed instruments, such as a deed of real estate; but upon executory contracts its effect has been changed by statute, so that a seal is only presumptive evidence of a 'sufficient consideration which may be rebutted in the same manner as if the instrument had not been sealed. A mortgage is an executory instrument, and comes within the provisions of section 840 of the Code of' Civil Procedure.

      Semble, that it is not competent for a witness to testify, upon the trial of an action, as to the contents of books, as the books themselves are the best evidence of their contents.
    Appeal by the plaintiff, Isabella M. Baird, as executrix, etc., of John Baird, deceased, from a judgment of the County Court of Monroe county in favor of the defendants, entered in the office of the cleric of the county of Monroe on the 4th day of January, 1894, upon the decision of the court dismissing the plaintiff’s comjilaint upon the merits, and directing the discharge of a certain mortgage and lis pendens from the records in the office of the clerk of the county of Monroe.
    Appeal by the defendant, "William Baird, from so much of a judgment o'f the County Court of Monroe county in favor of the defendants, entered in the office of the clerk of the county of Monroe on the 4th day of January, 1894, upon the decision of the court, as dismisses the defendant’s answer setting up a counterclaim.

      Artlvwr E. Sutherland, for Isabella M. Baird, as executrix, etc.

      George A. Benton, for James O. Baird and "William Baird.
   Haight, J.:

This action was brought to foreclose a mortgage given by the defendant, 'William Baird, to John Baird, the plaintiffs testator, as a security for the payment of the sum of $1,500. The County Court has found as facts that the mortgage was executed and deliv-. ered without intending the same to be a valid and subsisting security, and that it was not the intention of either party to said instrument that it. was to be a valid and subsisting -security based upon any consideration in fact, or to be enforced against the defendant, William Baird, and was never to be recorded; that the mortgage was not recorded by the plaintiffs testator, but was recorded by the plaintiff herself after her marriage with him in the year 1876. That John Baird, on different occasions -after the execution of the mortgage, and to different parties with whom he had conversations upon the subject, stated that there was no indebtedness existing from the defendant to him, and that there was no consideration for the mortgage, and that it was not to be enforced, and was not to be recorded.

Upon the trial evidence was given tending to show that in the year 1873 John Baird was the owner of the farm upon which the mortgage in suit was given ; that he had two sons, J ames and William; that he was indebted to them in the sum of $5,000, and that it was agreed between them that this indebtedness should be paid by his deeding to them each an undivided half of the farm in question ; that pursuant to that agreement the boys entered into possession,of the farm, and have since occupied the same. That subsequently, and about the 30th day of October, 1874, and in consideration of the agreement so made, John Baird executed and delivered to his sons a deed of the premises, and thereupon asked them each to execute and deliver back to him a mortgage thereon for the sum of $1,500, stating that he wished it only for the purpose of controlling the place, and preventing their selling it in case either of them should get into trouble through speculations or otherwise, and that he would not have it recorded, ór hold it as an evidence of any debt owing to him, but would surrender it up and have the mortgages canceled whenever it was necessary and advisable so to do; that thereupon the mortgages, of which that in suit is one, were executed and delivered to him.

Our examination of the evidence leads us to the conclusion that it is sufficient to sustain the findings of the trial court.

The plaintiff is the personal representative of the deceased, :and stands in his place. She is not a purchaser or assignee for value of the mortgage, and we think that there can be no doubt but that the declarations of her testator, made during the time that he was the holder and owner of the mortgage, were competent as evidence.

A question exists in reference to the competency of the evidence given of declarations made at the time of and before the execution and delivery of the mortgage. This evidence was taken under objection, and it is now claimed that it tends to contradict an instrument which is under seal. "We are, however, inclined to the view that the -evidence was properly received. If it should be held that the evidence could not be received for the purpose of showing want of sufficient consideration in the mortgage, or that it had no consideration, still, we think, it was competent to show the circumstances and purpose for which it was delivered. But we are inclined to the view that it may also be received for the purpose of showing a want of consideration. It is true that the mortgage is under seal, and recites that it was given in consideration of the sum of $1,500. Formerly, a seal upon an instrument imported consideration, and the presumption could not be rebutted, so as to invalidate the instrument; and such is still its effect upon executed instruments, such as a deed of real estate; but upon executoiy contracts its effect has been changed by statute, so that a seal is only presumptive evidence of a sufficient •consideration which may be rebutted as if the instrument was not .sealed. (2 R. S. 406, § 77; Code Civ. Proc. § 840.) A mortgage is an executory instrument and comes within the provisions of this statute.

In Jones on Mortgages (5th ed.), at section 1297, it is said that want of consideration iá a good defense, and parol evidence is admissible to show that no debt ever existed between the parties to the mortgage. At section 613 it is said that “A mortgage under seal implies consideration at common law and none need be proved, and it is good if it is shown that none was given. Neither courts of law nor equity will allow the consideration to be inquired into for the .sake of declaring the instrument void for want of consideration, but they will- for the purpose of ascertaining what is due upon it. •* -x- * jn ]S[ew York a seal affords only presumptive evidence of a sufficient consideration, and this presumption-may be rebutted in the same manner and to the same extent as if the instrument were not under seal. A mortgage imports a consideration, so that the burden is upon the party who sets up the want of consideration to prove that it was made without consideration.”

In Parkhurst v. Higgins (38 Hun, 113) the precise question involved appears to have been considered by this court, and Smith, P. J., in delivering the opinion of the court, says: Testimony was given on the part of the defendants of declarations made by Caleb Higgins at the time of the execution of the mortgage, and also prior and subsequent thereto, with reference to the object, purpose or consideration of the mortgage. The plaintiff’s counsel objected to the proof of any declaration not amounting to an agreement between the parties as immaterial; also- to any parol proof on the part of the defendants to contradict the mortgage, and also to any declarations of the mortgagee against the plaintiff. These objections were overruled and the plaintiff’s counsel excepted. We think there was no error in the rulings. It was competent to show by parol the actual purpose and consideration of the mortgage and the fact that it was without consideration.”

In Davis v. Bechstein, (69 N. Y. 440) Davis executed to one Riley a bond and mortgage simply as an accommodation to be used as collateral security for a loan he proposed effecting. Riley failed to procure the loan, but sold the bond and mortgage to Bechstein. In an action .brought by Davis to have the bond and mortgage canceled, it was held that Riley had no authority to sell the bond and mortgage to Bechstein; that it was given without consideration, and that Davis was entitled to judgment declaring the bond and mortgage void.

In Schenck v. Warner (37 Barb. 258) it was held that the evidence of the declarations and admissions of the deceased mortgagee in his lifetime, tending to show a part payment of the mortgage by the plaintiff, was admissible in such action, it not being given against a subsequent purchaser or assignee for value. (Anthony v. Harrison, 14 Hun, 198, 217; S. C., affd., 74 N. Y. 613; Cady v. Jennings, 17 Hun, 213; Produce Bank v. Bache, 30 id. 351; Wearse v. Peirce, 24 Pick. 141; Hannan v. Hannan., 123 Mass. 441; Cawley v. Kelley, 60 Wis. 315-319; Briggs v. Langford, 107 N. Y. 680.)

James Baird was a competent witness for his brother William. (Lyon v. Ricker, 141 N. Y. 225-232; Hobart v. Hobart, 62 id. 80.) In his testimony he spoke of the interview between William and his father occurring in March, 1813, and stated that the books were produced, and that the accounts were footed up, and that he footed up William’s account, and that the amount was $2,600. This evidence was taken under objection. It was not competent for the witness to testify as to the contents of the books, for the books would furnish safer evidence, but we do not understand him to have given the contents of the books. He has only stated the amount of the footings of the figures made by himself. The amount of these footings came in as a part of the conversation that took place between the parties at the time the agreement was made to transfer the farm in consideration for the amount that was owing to William and James by their father.

The judgment should be affirmed, with costs.

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

Judgment appealed from in each case affirmed, with costs to the defendant.


author: Davy, J.:

text:
    Thomas R. Norris, Appellant, v. Herbert A. Jones and Another, Respondents.

      Action of replevin — sufficiency of the affida/oit — lawful expenditures of the trustee of a school district — regularity of a tax assessment, how tested — goods seized on legal process for the collection of a taac — remedy of the owner thereof— a public officer presumed to hare properly discharged his duty — execution of a warrant for an excessive taco by the collector of a school district — corrected by certiorari or by a school trustee — erroneous assessment and an assessment without ju/risdiction, distinguished— when no action will lie against the collector.

    An affidavit, made and delivered to the sheriff on behalf of the plaintiff in an action of replevin against the trustee of a school district and the collector of such district [where the chattel sought to be replevied was taken by virtue of a warrant against the plaintiff for the collection of a tax assessment issued in pursuance of a statute of the State of New York], contained an allegation as follows: “The said tax containing moneys to be raised thereby which were not legally, properly and justly chargeable to said district.” It also alleged that the defendants were not legally competent to hold the offices as claimed by them.

      Held, that the allegations sf such affidavit were wholly insufficient under the provisions of sections 1890 to 1695 of the Code of Civil Procedure, to authorize the taking of the property from the collector, inasmuch as the affidavit did not state facts showing that the taking of the property was unlawful hy reason of defects in the process, or that the detention was unlawful by reason of facts which had subsequently occurred;
    That such allegation was a mere legal conclusion, and that the affidavit should have specified the moneys included in the assessment which were not legally chargeable to the district, so that the court could determine from the facts alleged whether the taking was unlawful or not.
    The trustee of every school district of the State of New York is authorized by law to expend in the necessary and proper repairs of the school house under his charge a sum not exceeding twenty dollars in any one year, and he may also expend a sum not exceeding fifty dollars in the erection of necessary outbuildings when authorized by the school commissioner or the Superintendent of Public Instruction. He is also authorized to make repairs and abate any nuisance, and provide fuel, pails, brooms and other implements necessary to keep the school house clean and make it reasonably comfortable for use. He may provide for building fires and cleaning the school room, and he may expend for books a sum not exceeding fifteen dollars, all of which shall be a charge upon the district.
    When the trustee is required or authorized by law to incur any expense for school purposes, the statute makes it a charge upon the district, and he may raise the amount thereof by tax in the same manner as if a definite sum to be raised had been voted by a district meeting.
    It may be stated as a general rule that replevin is not the .proper mode of testing the regularity of a tax assessment.
    Goods seized on legal process for the collection of a tax, by a tribunal having jurisdiction of the subject-matter and of the person, cannot be retaken from the officer by a writ of replevin even though the warrant may have been issued erroneously or irregularly.
    ¡The remedy afforded by law in the State of New York to an individual whose property is seized to satisfy a tax, levied under an unconstitutional law or levied without jurisdiction to levy it, is either to bring replevin for his property seized to satisfy such tax, or, in a proper action, to make the collector, or those under whose direction he acts, personally liable for the damages resulting to the taxpayer by reason of such tax.
    There is always a legal presumption that a public officer will properly discharge his duties, and when a party claims that a public officer has failed to discharge his statutory duty the burden is upon him to show that such duty was not performed.
    Where a warrant for the collection of a tax issued to the collector for a school district is in the form and contains all the requirements prescribed by law, and a tax list is attached to the warrant which contains a list of the names of the taxable inhabitants of the district, and the items for which the tax is imposed, if there is nothing upon the face of the papers to notify the collector that such tax includes money to be raised thereby which is not legally, prop-, erly and justly chargeable to such district, or to show that the trustee of such school district, or the collector therefor, is not legally competent to hold his office, it is the duty of the collector to execute the warrant, and he is not bound to inquire whether a portion of the assessment is excessive or illegal.
    Where a portion of the amount, expended by the trustee for a school district, included in a tax levy, was ordered by the school commissioner, and a portion thereof said trustee was by statute authorized to raise irrespective of any vote of the district, and a portion of the tax was ordered by a previous vote of the district, it is the duty of the trustee to make out a tax list and to issue a warrant for its collection, and if in the performance of such duty such trustee acquires jurisdiction of the inhabitants of such district and of the subject-matter, any irregularity in the making of 'such assessment, such as making it for a sum larger than he was authorized to do by law, does not invalidate the whole assessment. It is merely an irregularity and can be corrected in proceedings by certiorari under section 2241 of the Code of Civil Procedure, or, at the request of an inhabitant of such district, the trustee, with the consent of the Superintendent of Public Instruction, is authorized by law to make the correction.
    There is a clear distinction between a case of erroneous or over assessment and a case of assessment made under an unconstitutional act or without any authority. The distinction is the same in effect as that between an erroneous judgment of a court having jurisdiction of the person and subject-matter and the judgment of a court having no jurisdiction, and a tax warrant regular on its face, issued for the collection of a tax levied under an erroneous assessment, affords protection to the officer serving it, while a tax warrant issued for the collection of a tax levied under an unconstitutional law or without authority of law affords no protection whatever.
    When the proper tribunal has made an assessment, which the collector of a school district is called upon to enforce, no action will lie against him.
    Appeal by the plaintiff, Thomas R. Norris, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Yates on the 27th day of December, 1893, upon the decision of the court rendered after a trial at the Yates Circuit before the court and a jury dismissing the plaintiff’s complaint upon the merits.

      W. R. Fiero and WilUam T. Morris, for the appellant.

      Briggs c& Sunderlim,, for the respondents.
    Present — Dwight, P. J., Lewis, Haight and Bradley, JJ.
    Judgment appealed from affirmed on the opinion of Davy, J., at Circuit.
   The opinion at the Circuit was as follows:

Davy, J.:

It appears from the undisputed evidence taken upon the trial in this action that the defendant Herbert A. Jones was duly elected trustee of school district No. 2, in the town of Milo, in the county of Yates, for the year 1893; that on the second day of March of that year he made out an annual tax list for said school district, and attached thereto his warrant for the collection of the school district taxes, and delivered the tax list and warrant to the defendant Josephine E. Jones, who was duly appointed collector for the school district. After she received the tax list and warrant, she called upon the plaintiff and demanded the payment of sixteen dollars and eighty-three cents, school tax, which he refused to pay. On the 30th day of March, 1893, she duly levied upon personal property belonging to him to satisfy said tax. The property was at once replevied by the plaintiff, and the question now arises whether the action of replevin can be maintained.

The plaintiff contends that the Code of Civil Procedure (§§ 1690-1695) authorized the bringing this action to replevy his goods because the assessment was for a larger sum than the trustee was authorized by law to make under section 1690. An action to recover a chattel'cannot be maintained when the chattel is taken by virtue of a warrant against the plaintiff for the collection of a tax assessment or fine, issued in pursuance of any statute of the State or of the United States, unless the taking was or the detention is unlawful, as specified in section 1695. Subdivision 4 of that section provides that the affidavit to be delivered to the sheriff must particularly describe the property to be replevied, and must state that it has not been taken by virtue of a warrant against the plaintiff for the collection of a tax assessment or fine, issued in pursuance of a statute of the State or of the United States, or if it has been taken under color of such warrant, either that the taking was unlawful by reason of defects in the process or other cause specified, or that the detention is unlawful by reason of facts specified which have subsequently occurred.'

The affidavit which was delivered to the' sheriff states that the taking and detention of plaintiff’s property was unlawful by reason of the following defects in the process, to wit: The said tax com taining moneys to be raised thereby which were not legally, properly and justly chargeable to said district.” It also alleges that the defendants were hot legally competent to hold the offices as claimed by them. The affidavit, therefore, was wholly insufficient to authorize the taking of the property from the collector. It did not state facts showing that the levy was unlawful by reason of defects in the process or by reason of facts which had subsequently occurred. The allegation is but a mere legal conclusion. (Talcott et al. v. City of Buffalo, 125 N. Y. 280; Emery v. Baltz et al., 94 id. 408.) It should have specified the moneys included in the assessment that were not legally chargeable to the district, so that the court could determine from the facts alleged whether the taking was unlawful or not. The provision of the Code upon this point is imperative, and any attempt to evade its letter or spirit should be regarded as an evasion of one of the vital prerequisites of the issuing of the writ.

Assuming that a portion of the tax was unauthorized, that fact would not, in my opinion, make the taking of the property by the collector unlawful, providing the trustee had jurisdiction of the subject-matter and authority to issue the tax warrant.

The trustee of every school district in the State is authorized by law to expend, in the necessary and proper repairs of the school house under his charge, a sum not exceeding twenty dollars in any one year, and he may also expend a sum not exceeding fifty dollars in the erection of necessary outbuildings, when authorized by the school commissioner or the Superintendent of Public Instruction. He is also authorized to make repairs and abate any nuisance, and provide fuel, pails, brooms and other implements necessary to keep the school house clean and make it reasonably comfortable for use. He may also provide for building fires and cleaning the school room, and he may expend for books a sum not exceeding fifteen dollars, 'all of'which shall be a charge upon the district. "When the trustee is required or authorized by law to incur any expense for school purposes, the statute makes it a charge upon the district, and he may raise the amount thereof by tax in the same manner as if a definite sum to be raised had been voted by a district meeting. (Laws of 1886, chap. 292, § 1; 1 Birdseye’s Rev. Stat. 565, §§ 135, 136.) The statute also provides that -the trustee’s warrant for the collection of the district tax shall have the like force and effect as a warrant issued by a board of supervisors to a collector of taxes in a town, and the collector to whom it is delivered for collection shall be thereby authorized and required to collect from every person in such tax list named the sum set opposite to his name, in the same manner as collectors are authorized to collect town and county taxes. (Laws of 1867, cliap. 406, § 81; 1 Birdseye’s Rev. Stat. 570, § 164.) The laws seem to be quite uniform in all the States that goods seized on legal process for the collection of a tax by a tribunal having jurisdiction of the subject-matter and of the person cannot be retaken from the officer by a writ of replevin, even though the warrant may have been issued erroneously or irregularly. This rule is founded upon the necessity for the prompt collection of the public revenue.

The remedy afforded the individual by law in this State whose property is seized to satisfy a tax levied under an unconstitutional law, or levied without authority or jurisdiction to levy it, is clear. He may bring replevin for his property seized to satisfy such tax, or he may, in a proper action, make the collector, or those under whose direction he acts, personally liable for the damages resulting to him by reason of such unlawful seizure. The warrant in this case was in the form prescribed and adopted by the department of public instruction and used in the school districts throughout the State. It contains all the requirements prescribed by law. (Code Pub. Inst. 1887, p. 331.) The tax list was attached to the warrant, and contained a list of' the names of the taxable inhabitants of the district and the items for which the tax was imposed. There was nothing upon the face of these papers to notify the collector of the alleged irregularity, and hence it- was her duty to execute the warrant. (Lake Shore & M. S. Ry. Co. v. Roach, 80 N. Y. 340; Hersee v. Porter, 100 id. 410; Niagara Elevating Co. v. McNamara, 50 id. 653, 654; Troy & L. R. R. Co. v. Kane, 72 id. 614.)

The learned counsel for the plaintiff conceded upon the argument that the trustee was legally authorized to expend and assess upon the taxable property of the district a portion of the money included in the tax assessment, but he contends that a portion of the assessment was unauthorized, and, therefore, the whole tax assessment is void.

There is always the legal presumption that public officers will properly discharge their duties, and when a party claims that such an officer has failed to discharge a statutory duty, the burden is upon him to show that such duty was not performed. It appears from the evidence that a portion of the amount expended by the trustee and included in the tax levy was ordered by the school commissioner, and a portion thereof the trustee was authorized by statute to raise, irrespective of any vote of the district, and a portion of the tax was ordered by a previous vote of the district. The law, therefore, made it the duty of the trustee to make out a tax list and to issue a warrant for its collection. In performing this duty he acquired jurisdiction of the plaintiff and of the subject-matter, and being clothed with legal authority to make the assessment, any irregularity, such as making it for a larger sum than he-was authorized by law to make, did not invalidate the whole assessment; it was simply an irregularity that could have been corrected in proceedings by certiorari under the Code of Civil Procedure (§ 2241). Or the plaintiff might have requested the trustee to correct the error, if any, in the tax list, who, with the consent of the Superintendent of Public Instruction, was authorized under the statutes to make the correction. (Laws of 1867, chap. 406, § 87.) There is a clear distinction between a case of erroneous or over assessment and a case of an assessment made under an unconstitutional law, or the assessment of property which the law has made no provision for assessing. The distinction is the same, in effect, as that of an erroneous judgment of a court having jurisdiction of the person and subject-matter and the judgment of a court having no jurisdiction. To illustrate still further, a tax warrant, regular on its face, issued for the collection of a tax levied under such erroneous assessment, would afford protection to the officer serving it, while a tax warrant issued for the collection of a tax levied under an unconstitutional law, or without authority of law, would afford no protection whatever. The distinction between an erroneous and an illegal assessment is clearly stated in Weaver v. Devendorf (3 Den. 117), and in National Bank of Chemung v. City of Elmira (53 N. Y. 49).

The former case was an action by a clergyman for an alleged refusal to allow him the statutory exemption; it appeared that he had more property than the amount of the exemption for which he was liable to be taxed. It was held that the assessors had jurisdiction to act and were not liable for making the assessment too high, however erroneous their decision might have been.

It is a well-recognized fact that more or less errors have always been connected with the assessment, levy and collection of taxes, and if every taxpayer is at liberty to controvert the correctness of his assessment by replevying property levied upon by the collector, it would stay the collection of the revenue in every school district, town and city in the State.

Therefore, it will not do to permit the collection of taxes to be interfered with by such proceedings, unless it clearly appears that there was a want of jurisdiction in the assessing or collecting officers. The effect of permitting such actions to be maintained would soon prove disastrous to our system of taxation. It may be stated as a general rule, supported by numerous authorities in England and in this country, that replevin is not the proper mode of testing the regularity of a tax assessment. It has been repeatedly decided in this class of cases that when the proper tribunal has made an assessment which the collector is called upon to enforce, no action will lie against him; were it otherwise there would be no safety for the collector and no certainty in the collection of the public revenue. (Wells on Replevin, § 224; Van Deventer v. Long Island City et al., 139 N. Y. 138.)

Cooley, in his work on Taxation (1st ed., p. 540), says: “ A tax will not be restrained on the ground merely that it is irregular or erroneous. Errors in the assessment do not render the tax void, nor, as a general rule, do they constitute any reason whatever against its being strictly enforced, biit, however that may be in any particular case, the law has provided remedies for all such mere irregularities and errors as do not go the foundation of the tax, and parties complaining must be confined to these.”

The Court of Appeals held, in the case of The Susquehanna Bank v. Suprs. of Broome Co. (25 N. Y. 312, 313), that there is no more reason for entertaining a suit to restrain the collection of a tax than there would be where, in an action for the recovery of money, a party had a judgment against him upon erroneous rulings of law. (Western R. R. Co. v. Nolan, 48 N. Y. 516.)

The case of D. & H. Canal Co. v. Atkins (121 N. Y. 246) was an action brought to restrain a collector from collecting a tax levied and assessed upon the plaintiff’s property and to have the assessment declared void on the ground that the assessment was out of due proportion and too large in its valuation and was void for the reason that the persons that assumed to make it were not assessors de jure or defacto. It was held in that case that the action was not maintainable, both because public policy would not sanction such an interference with the process of taxation and that ample remedies existed at law. The court also held that for the first wrong complained of a certiorari is an entirely adequate remedy, and for the other an action against the collector might be maintained for executing a warrant void on its face.

In the case of The Western R. R. Co. v. Nolan (supra) the court says: “ The rule denying the right to interfere by injunction to restrain the collection of a tax is one of public policy, audit is equally applicable to the case of an assessment. The measures adopted for equalizing and gathering the public revenue and the means of paying the demands of the creditors of the government, as well as carrying on or continuing the public business, ought not to.be restrained or delayed at the suit of private parties.”

The Legislature has provided a tribunal where any person may have an erroneous assessment of his property corrected by instituting certiorari proceedings, and in this way the operations of the various branches of the State government are not materially interfered with. This remedy has been repeatedly adopted and sustained by the Court of ApjDeals in such cases as adequate for the correction of all errors liable to be committed by assessors or trustees of school districts in the performance of their official duties.

Cooley on Taxation (p. 572) says: In some cases, one whose goods have been seized for the satisfaction of a tax, may recover them by writ of replevin, but to justify this process the tax must be absolutely void and not merely unjust, excessive or irregular. * * 'x‘ Where replevin is allowed it cannot be maintained by the party taxed unless the whole tax is illegal, as it must assume that the seizure of the goods is without warrant of law.” He also says: “ The liability of this process to vexatious use is so considerable that it has been deemed proper in some of the States, on grounds of public policy, to provide that replevin shall not lie for property dis-trained for taxes.”

In the case of Woolsey v. Morris (96 N. Y. 315) Judge Andrews says: “ That a ministerial officer is protected in the execution of process, regular on its face, issue.d by a court, officer or body having general jurisdiction of the subject-matter.” ITe also says: “ The rule is founded in public policy for the protection of public officers charged with the duty of executing process.” The court also held that “ where an officer having several processes in his hands, some valid and some invalid, levies under all of them, upon the personal property of the party against whom they are issued, the bare levy does not constitute the officer a trespasser. * * * "What he did was no more than the officer was justified in doing under the valid process.”

What the collector did in making the levy in this case was no more than she was authorized to do, providing the assessment had not been excessive. She was not bound to inquire whether a portion of the plaintiff’s assessment was excessive or illegal. She was justified in obeying the command of the warrant, especially when it was regular on its face and issued by the trustee who was authorized by law to issue it.

Judge Finch, in United Lines Tel. Co. v. Grant (137 N. Y. 7), says: “ The protection given to the collecting officer is where his process emanates from a competent judicial authority and is regular on its face. He is not bound to look beyond it and may assume its validity.” The learned judge also says, at page 12, if it appears that the warrant is valid, but “ that the officer * * * did not lawfully and regularly make the assessment, it is sufficient to say that the plaintiff had an ample and sufficient remedy by certiorari.” (Mayor v. Davenport, 92 N. Y. 610; D. & H. Canal Co. v. Atkins, 121 id. 246; Code Civ. Proc. §§ 2140, 2141.)

In the case of Kennedy v. City of Troy (77 N. Y. 493) the court held that where assessors for a local improvement determined that all the property benefited must be assessed, an error in determining what property is in fact benefited must be reviewed by certiorari and not by action. (Troy & Lansingburg R. R. Co. v. Kane, 72 N. Y. 614; L. S. & M. S. Ry. Co. v. Roach, 80 id. 339; Hersee v. Porter, 100 id. 410.)

Judge Earl, in Strusburgh v. Mayor of the City of New fork (87 N. Y. 455), says : An action in equity to vacate an assessment and restrain its collection cannot be maintained merely because the assessment is for any reason invalid or illegal.”

This rule, he says, has its foundation in public policy for the reason that it would lead to great embarrassment and inconvenience if the collection of taxes and assessments were to be delayed by such action. (Heywood v. The City of Buffalo, 14 N. Y. 534.)

The replevin proceedings in this action would, no doubt, have been vacated and set aside by the court,- if application had been made at the proper time by the defendants.

The case of American Tool Co. v. Smith (32 Hun, 121) was an action to replevy certain articles of personal property seized by the marshal of the city of New York under a warrant for the collection of a tax. The plaintiff claimed that the seizure was illegal for the reason, among others, that the amount of the tax did not appear upon the warrant, the dollar sign not having been placed before the figures. Upon a motion made by the defendant the replevin proceedings were set aside. The court at General Term says: “ The change from the Revised Statutes, made by the Code, would leave the door open to the greatest embarrassments in the collection of taxes, if such objections could be brought and sustained, where the proceedings are entirely regular, upon the mere assertion of invalidity, and no proceedings could be had to get rid of the action until the final trial.”

It is also claimed by the plaintiff that the case of Haley v. Whitney (53 Hun, 121) is controlling in this case. That was not an action in replevin, but an action in trespass against a school district trustee. The question presented in that case was whether the defendant had jurisdiction to issue the tax warrant, and the court held that he did not have; that the defendant, in levying the tax upon the plaintiff’s property and issuing the warrant for its collection, acted without jurisdiction over the subject-matter. In this case the trustee had jurisdiction over the subject-matter and authority to issue tbe tax warrant, and if any improper items were inserted therein by mistake, it did not make the process void, nor the taking of the property by the collector unlawful. (Parish v. Golden, 35 N. Y. 462.)

The complaint, therefore, must be dismissed, with costs against the plaintiff.


author: Dwight, P. J.: .

text:
    Falding W. Skinner, Appellant, v. Frederick Odenbach, Respondent.

      Judgment for the recovery by the plaintiff of an undivided interest in land — execution for the possession of the whole, set aside — defendant restored to the possession of his undivided interest.

    Where the judgment in an action of ejectment, brought to recover an undivided two-fifths interest in certain premises, awards to the plaintifl therein the possession of such undivided interest, but the execution issued thereon commands the sheriff to put him in possession of the whole premises, and the writ is so executed, the execution is irregular, and the defendant should be restored to-the possession of his undivided three-fifths of the premises, but not to the possession of the entire premises.
    Appeal by the plaintiff, Falding W. Skinner, from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Monroe on the 14th day of May, 1894, setting aside the execution in the action and restoring the possession of the premises described in the judgment to the defendant, and directing the sheriff to remove all other persons therefrom.

      J. Van Voorhis, for the appellant.

      JS. Ha/rris, for the respondent.

       Bee page 376.

   Dwight, P. J.: .

The interest alleged by the plaintiff was an undivided two-fifths of the premises described in the complaint; the report of the referee found him entitled to the undivided two-fifths, and judgment, entered thereupon, awarded to him the possession of the same undivided interest, but the execution issued thereon commanded the sheriff to put him in possession of the whole premises, and the proofs on the part of the appellant tend to show that the writ was executed accordingly.

The execution was plainly irregular in this respect. The Coda of Civil Procedure provides for an action by one or more joint tenants “to recover his or their undivided shares” (Code Civ, Proc. § 1500); it also provides for the enforcement of judgment in ejectment by execution (Id. § 1240, subd. 2), but it leaves to the Revised Statutes the more definite provision for the form and contents of the verdict, the judgment and the writ. (2 R. S. 307, §§ 23-27.) Thus, by section 23, subdivision 6, it is provided that if the verdict be for the undivided share or interest it shall specify such share or interest; by section 26, that if the plaintiff prevail the judgment shall be that he recover possession according to the verdict ; and, by section 27, that the writ of possession shall describe the premises recovered with the like certainty as above provided, and shall command the sheriff that he deliver to the plaintiff possession of the premises so recovered.

Moreover, the rule seems to have been the same at common law from a very early day. Thus, in 3 Wilson’s Reports, at page 49, we find the case of Roe ex dem. Saul v. Dawson, reported in full as follows: “ The plaintiff in ejectment, as tenant in common, recovered possession of five-eighths of a cottage with the appurtenances, and a writ of possession was executed by the sheriff, who turned the tenant out of possession of the whole and locked up the door, as appeared by the affidavit.

Ouria. This is wrong; the writ ought to have pursued the verdict. Let there be a rule upon the sheriff and the lessor of the plaintiff to restore the tenant to the possession of three-eighths of the premises, otherwise he would be forced to bring another ejectment for the same.”

So in Jackson ex dem. v. Styles (5 Cow. 418), which was a case of ejectment for undivided shares, the court says: But the plaintiff has taken possession beyond his right. The execution of the writ of possession was unqualified, though, as appears fully from the papers, the right to three-sixths of the premises in question was extinguished. Let the defendant be restored to so much.”

So to, in Jackson ex dem. v. Hasbrouck (5 Johns. 366) the court said that, where the plaintiff had taken possession of more land than was recovered by the verdict, the court, on motion, will order a restitution. This was a case of several title, but it shows, equally with the rest, that the court will, on motion in the action, order restitution when the execution exceeds the verdict and the judgment.

There is another question arising upon the proofs in this case under which the defendant claims to set aside the execution altogether and to be restored to possession of the entire premises; but that question relates to the effect of an alleged oral stipulation, in respect to which the proofs are directly in conflict, and to which, for that reason, we are not at liberty to give effect.

The order appealed from should be modified so as to confine its operation to the restitution to the defendant of the possession of the undivided three-fifths part of the premises, and, as so modified, affirmed, without costs of this appeal to either party.

Lewis, Haight and Bradley, JJ., concurred.

So ordered.


author: Lewis, J.:

text:
    George F. Ditmars and Another, as Executors, etc., of John V. Ditmars, Deceased, Plaintiffs, v. Frederick B. Sackett and Others, Defendants.

      Motion for a new trial — objection that the v&rdiet is excessive, when not mailable— recovery of possession of a chattel — rule of damages — action on a promissory note — evidence as to usury.

    Upon the hearing, at the General Term in the first instance, of a motion for a new-trial, made upon a case containing exceptions, the plaintiff is not in a position to ask that the verdict of a jury be set aside and a new trial be granted, on the ground that the amount of damages found by the jury was excessive, if the question was not raised by an exception taken by the plaintiff.
    In an action brought to recover the possession of personal property, where the plaintiff replevies the same and (the defendant not requiring the return thereof) sells the same at auction, and a portion thereof is bought in by the defendant, the correct rule of damages, as to the property which is not bought in at the auction sale by the defendant, in case the action results in favor of the defendant, is determined by its worth at the time of the trial, and the value of its use during the time of its detention. As to the property which is so purchased by the defendant, the correct rule is the value of the property and interest thereon from the time it was taken to the time of the trial.
    While the defendant, in an action brought upon a promissory note, where the defense is usury, is entitled to show what was done by the attorney of the payee in consummating the loan, he is not entitled to prove a declaration made by such attorney, in the presence of the maker and in the absence of the payee, that he had paid a certain amount to get the note discounted.
    Motion by the plaintiffs, George F. Ditmars and another, as executors, etc., of John Y. Ditmars, deceased, for a new trial on a case containing exceptions, ordered to be heard at the General Term in the first instance, upon the verdict of a jury rendered after a trial at the Seneca Circuit on the 5th day of March, 1894.

      William 8. Moore, for the plaintiffs.

      Geo. B. Sackett, for the defendants.
   Lewis, J.:

The defendant Frederick B. Sackett on the 16th day of November, 1891, executed and delivered to John Y. Ditmars a chattel mortgage upon a number of horses, cattle and a quantity of farming utensils, to secure the payment of a promissory note dated on that day, payable three months after date, for the sum of $150, which was made by the mortgagor and the defendant ~W. G-. Sackett. The mortgagee died on the 29th day of March, 1892, leaving a will in which these plaintiffs were named as executors. The promissory note not having been paid, plaintiffs, as such executors, duly demanded the mortgaged property of the defendants, which was refused, and they thereupon brought this action to recover possession thereof, basing their claim upon the said mortgage. The defendants interposed an answer setting up the defense of usury. The verdict of the jury was for the defendants. The jury fixed the value of the property at the sum of $448.80 and damages for its detention at $195. The defendants not having required the return of the property, it was sold by the plaintiffs at auction on the 4th day of January, 1893, a few days after it was replevied.

The evidence upon the trial to sustain the plea of usury was quite slight. It was, perhaps, however, sufficient to sustain the verdict, so far as that question was concerned.

An examination of the evidence has satisfied us that the verdict should be set aside and a new trial granted for the reason that the amount of damages found by the jury was altogether too large, if the plaintiffs were in a position to raise that question; but they are not, for the reason that this is not an appeal from the judgment, but is simply a motion for a new trial upon a case and exceptions .directed to be heard in the first instance at the General Term, and the question is not raised by any exceptions taken by the plaintiffs. Had the correct rule of damages been adopted on the trial, the amount found by the jury for the use of the property would have been very much less than it was.

The mortgaged property consisted of a quantity of horses, cows and farming implements. The greater part of the property at the sale was bid in for the defendants and went into their possession immediately and was retained by them down to the time of the trial. This property having a usable value the correct rule of damages as to that portion thereof which was not retained by the defendants was what it was worth at the time of the trial,and the value of its use during the time of its detention. (Allen v. Fox, 51 N. Y. 562.) But as to that portion of it which was bid in for the defendants and retained by them, the correct rule was the value of the property and interest thereon from the time it was taken to the time of the trial.

The defendants were allowed to give evidence as to the value of the use of that portion of the property purchased and retained by the defendants, and the amount of the verdict was largely increased in consequence of this evidence. But it does not appear from the case that any exception was taken by the plaintiffs to its admission.

The jury, after retiring to consider their verdict, returned into court and reported that they had found a verdict for the defendants for the sum of $393.80. The court thereupon remarked to the jury: I instructed you that if you found for defendants you were to find that they were entitled to the property; that you were also to find the value of the property at the present time; also a separate item as to what damages they have suffered, if any, by reason of the detention of the property. Tour verdict should be rendered in that form. If you find that they are entitled to the property, find its value and find one cent damages, if nothing more. Tou may retire.” The jury again returned into court and reported that they awarded the property to the defendants and fixed its value at the present time at $448.80 and damages for its detention $195. How the jury came to add the $55 to the amount of the damages as first reported does not appear. There certainly was no foundation in the evidence for any such increase. The amount first reported, $393.80, was not justified by the evidence, but we are not at liberty to send this case back for a new trial because of this error, for the reasons stated. There was, however, evidence admitted over the objection and exception of the plaintiffs, which we think was incompetent and prejudicial to the plaintiffs case. One of the defendants was permitted to testify to conversations with the deceased concerning the loaning of the money and as to what the deceased did on the day the loan was made at the office of the attorneys who were attending to the loan for the deceased. This evidence was properly objected to, but no exception seems to have been taken to its admission. The attorneys, Ditmars & Wyckoff, were employed by the deceased to examine the papers and attend to the making of the loan. They concededly retained out of the money loaned the sum of ten dollars. The question litigated was whether the deceased received any part of this sum of ten dollars as a bonus for loaning the money, or whether it was all received and retained by the attorneys for their services in procuring the loan for the defendants. The evidence that the deceased had any part of it was very slight indeed. He gave his check upon a bank payable to the order of the attorney George F. Ditmars for the whole amount. The attorneys drew the money upon the check, and in the absence of the deceased paid $140 to the defendants and retained the balance. The defendants’ theory of the transaction was that a part of this ten dollars went to the deceased, and to establish this, one of the defendants as a witness testified that he was in the office of the attorney on the day the loan was made; that the deceased was there, but left the office before the loan was consummated, leaving the witness and the attorney alone ; the witness was asked the following questions: “ Q. You may state what was done while you two were there together alone ? Plaintiffs’ counsel objected as immaterial and incompetent; that George F. Ditmars has not had any connection with this matter whatever. The Court.- — He can prove what took place with George F. Ditmars there. [Exception.] Q. You may state what was done or said between you and George F. Ditmars while you were in the office alone ? Plaintiffs’ counsel objected as incompetent and immaterial, which objection was overruled by the court and plaintiffs’ counsel duly excepted. A. He went out of the office. Q. This was when you were in the office together; tell what happened after he returned to the office and you were there alone.” A. We were in the private room, private office, and he came in with the money, this is George F. Ditmars; after he returned' with the money he said: ‘We will have to charge you $10 for this loan.’ John Y. Ditmars was absent at that time. I received wbat was equivalent to $140 in money from George E. Ditmars on that occasion in cash and receipts; I banded bim the mortgage and the note, and when he was paying me the money he says: ‘We will have to charge you $10 for this loan.’ I objected to it. I told him I was not able to pay it. And the legal interest was all that I could pay and I objected to it. I said: ‘I have got to use the money to-day, and I have got to have the money and I will pay it.’ I had to use the money that day. George said: "We will have to charge you the $10.’ He said: ‘We had to pay $7 to get the note discounted, and $3 for my services.’ * * * Plaintiffs’ counsel thereupon moved to strike out the whole of the' testimony as to the conversation with George E. Ditmars, which motion was denied by the court, and plaintiffs’ counsel duly excepted.”

"While the defendants were entitled to show what was done by the attorney in consummating the loan, they were not entitled to his declaration that he had to pay seven dollars to get the note discounted. This was important evidence tending to establish that seven dollars of the ten dollars went to the deceased as a bonus for discounting the note. It was a declaration on the part of the attorney as to what had theretofore taken place. "While the plaintiffs’ objection to the evidence and the motion to strike out the evidence should have been, perhaps, more specific in pointing out the precise part of the evidence which he desired stricken out, we are of the opinion that justice requires a new trial because of the admission of this evidence.

Plaintiffs’ motion for a new trial should be granted, with costs to abide the event of the action.

Dwight, P. J., Haight and Bradley, JJ., concurred.

Plaintiffs’ motion for new trial granted, with costs to abide the event.


text:
    Joseph W. Ayer, Respondent, v. Nathan Colgrove, Appellant.

      Seduction defined — damages for the seduction of the plaintiff’s minor daughter— hearsay evidence — jury instructed to disregard the same — the conduct of the woman seduced subsequent to her seduction, cannot be inquired into.

    Seduction is tlie act of a man in inducing a woman to permit unlawful sexual intercourse with him; it may be accomplished by the use of seductive acts, such as flattery, solicitations, importunity and promises; and it is competent, upon the trial of an action brought to recover damages for the seduction of the plaintiff’s infant daughter, for the plaintiff to show that his daughter was seduced by the defendant under his promise to marry her if anything happened.
    Upon the trial of an action brought to recover damages for the seduction of the plaintiff’s infant daughter, a witness sworn in behalf of the defendant testified that one Dr. Crandall informed him that he had the plaintiff’s daughter in the family way.

      Held, that it was proper for the court to instruct the jury upon the plaintiff’s motion to strike out such testimony, that “the testimony of this witness is not to be considered by this jury as tending to show that this girl had had any relations w'ith Dr. Crandall or with any other man. , It is as vicious as it can he, and it is to be utterly disregarded by this jury as tending to prove any facts in this case of that character,” inasmuch as the evidence was incompetent.
    Upon the trial of such action the defendant offered to show that the plaintiff’s daughter had illicit intercourse with a person other than the defendant at a time after the alleged seduction, but before the plaintiff’s daughter became pregnant.

      Held, that such offer was properly excluded, unless the time to which it related was within the period of gestation, in which case it would have been proper as tending to show that the pregnancy might have occurred in consequence of such connection.
    Upon the trial of an action brought to recover damages for the seduction of the plaintiff’s minor daughter, the conduct of the woman seduced subsequent to ■ her seduction cannot be inquired into for the purpose of affecting her character or in mitigation of damages; if the defendant accomplished her seduction and ruined her reputation, he cannot complain of her subsequent conduct, for it may well be attributed to his original wrong.
    Appeal by tbe defendant, Natban Colgrove, from a judgment of tbe Supreme Court in favor of tbe plaintiff, entered in the office of tbe clerk of the county of Allegany on the 12th day of November, 1891, upon tbe verdict of a jury for $1,600, rendered after a trial at the Allegany Circuit, and also from tbe order entered in said clerk’s office on tbe 10th day of August, 1892, denying tbe defendant’s motion for a new trial made upon tbe minutes.

      E. E. Eelyea, for the appellant.

      G. W. Earding, for the respondent.
   Haight, J.:

This action was brought to recover damages for the seduction of the plaintiffs infant daughter. The evidence given on behalf of the plaintiff tends to show that his daughter Ella was of the age of seventeen years and was living in defendant’s family as a servant; that in the month of February, 1887, she was seduced by and had intercourse with him under the representation that if she would let him have his wish, if anything happened he would marry her; that such intercourse thereafter continued until' the twenty-second day of N ovember, at which time she became pregnant, and was thereafter delivered of a child on the 9th day of August, 1888.

Whilst it may not be material or competent to prove that there was an existing contract of marriage between the defendant and Ella, we think it was proper to show that such a promise was made in order to accomplish the seduction. Seduction is the act of the man in inducing the woman to permit unlawful sexual intercourse with him. This may be accomplished by the use of seductive arts such as flattery, solicitation, importunity and promises.

On the trial one Stewart was sworn as a witness for the defendant, and testified that one Hr. Crandall informed him that he had this girl in the family way. The plaintiff’s counsel asked the court to strike the testimony out. The court did not strike it out, but instructed the jury that “ the testimony of this witness is not to be considered by this jury as tending to show that this girl had had any relations with Hr. Crandall or witli any other man. It is as vicious as it can be, and is to be utterly disregarded by this jury as tending to prove any facts in this case of that character.” An exception was taken by the defendant to these remarks. We think the instruction was proper. The evidence was certainly incompetent. It was an attempt to establish that this girl had had improper relations with Hr. Crandall, not by testimony, but by the hearsay declarations of a person not under oath. It was vicious in this respect, and it was the duty of the court to instruct the jury to disregard it.

The defendant offered to show by one Butler and a Mrs. Martin that in September, 1887, Ella had illicit intercourse with Butler at a ■ hotel in Portageville. This evidence was excluded, and an exception was taken. The time to which this offer relates was after the alleged seduction and before she’ became pregnant. It was not within the period of gestation. If it had been it would have been proper, as tending to show that the pregnancy might have occurred in consequence of such connection. But not being within the period within whicl,i the child could have been begotten, it was only material upon the question of the girl’s character, and it is well settled that her conduct subsequent to the seduction cannot be inquired into for the purpose of affecting her character or in mitigation of damages. If she was chaste and virtuous prior to the time that the defendant accomplished her seduction and ruined her reputation, he cannot complain of her subsequent conduct, for it may well be attributed to his original wrong.

In the case of Boyce v. The People, etc. (55 N. Y. 644-646), similar evidence was offered and excluded. Allen, J., in delivering the opinion of the court, says: “ The rejection could be sustained upon the ground that the offer was not limited to show any illicit intercourse at a time when the child could have been begotten, and was, in effect, simply to show that after the alleged seduction she had been guilty of fornication with another person, which was clearly incompetent.”

In Holcomb v. Tuttle (79 Ill. 409-414) similar evidence was offered, and it was said in reference thereto: “ In this class of cases an innovation has been made on the strict rules of cross-examination so far as to permit the defendant to ask the woman whether, within the period of gestation, she has had intercourse with other men, for the purpose of overcoming the probability of accused being the father.” The evidence offered was held to be incompetent. (See Kenyon v. The People, 26 N. Y. 203; Wood Mast. & Serv. [1st ed.] 497; 5 Wait’s Act. & Def. 670; White v. Murtland, 71 Ill. 250-264; Shewalter v. Bergman, 123 Ind. 155.)

In Young v. Johnson (123 N. Y. 226) the evidence of the misconduct of the plaintiff was before the alleged assault was made upon her, and it was, therefore, proper.

The judgment and order appealed from should be affirmed.

Dwight, P. J., Lewis and Bradley, XL, concurred.

Judgment and order appealed from affirmed.