author: Martin, J.: Hardin, P. J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. SAMUEL P. HILL, Appellant.

      Grimes —justifiable manslaughter — burden of proof— death of a witness proved by the understanding and belief of nea/r relatives.

    Tlie material issue upon tlie trial" oí an indictment was whether Samuel P. Hill killed Robert Peasley, under such circumstances as to constitute a crime, or whether such killing was justifiable.
    The court charged the jury: “If you shall believe that the defendant was justified in this attack; and I mean by that, if you shall be convinced beyond reasonable doubt that he was justified in it, then your verdict shall be not guilty.”

      Held, that this charge was erroneous.
    That, by these words, the burden of proof was cast upon the defendant not only to justify his attack but to justify it beyond a reasonable doubt.
    On a former trial evidence material to the case of the defendant was given by Amasa B. Waters, who then resided in Georgia and was seventy-seven years old. On the second trial it was proved that Waters returned to Georgia after the first trial, and also that his near relatives understood that he died in 1888.

      Held, that the evidence given upon the former trial upon the same issues between the same parties was admissible.
    That a ruling excluding it would be reviewed on appeal.
    Appeal by the defendant Samuel P. Hill from a judgment of tlie Court of Oyer and Terminer of Delaware county, rendered on tlie 3d day of October, 1890, convicting Mm of tlie crime of manslaughter in the second degree; and also from an order denying a motion for a new trial.
    Upon the trial Sarah Waters, a daughter-in-law of Amasa B.Waters, testified that she had heard from his son that Amasa B. Waters was dead. She also identified the handwriting of a letter written by Mary J. Becker, a daughter, to the defendant’s attorney, stating his death, and giving the particulars thereof.
    It appeared by the statement of facts contained in the appellant’s brief that the appellant was indicted by the grand jury of Delaware county for murder in the second degree, for having killed one Robert Peasley on the 10th day of September, 1886, at the town of Sidney in that county. To this indictment the defendant pleaded not guilty. His defense was justifiable homicide.
    He was subsequently tried at the Delaware Sessions in March, 1887. The jury rendered a verdict of guilty of manslaughter in the ■second degree. Tlie court thereupon sentenced the defendant to •ten years’ imprisonment in the State prison at Auburn. From the judgment of conviction the defendant appealed to the General Term of the Supreme Court. The General Term reversed the judgment and granted a new trial. The judgment of reversal was entered in Delaware county clerk’s office J"anuary 8,1889. The people appealed from that judgment to the Court of Appeals, which affirmed the judgment of the General Term. Subsequently the action was sent to the Oyer and Terminer.
    The case was again tried in the Oyer and Terminer in September, 1890. The trial resulted in a verdict against the defendant of manslaughter in the second degree and he was sentenced to imprisonment in the State prison at Auburn for the term of five years and two months. On the last trial the defendant added to his plea of not guilty the further plea of the former acquittal.
    The record disclosed that the defendant moved for a new trial ■upon all the grounds mentioned in section 465 of the Code of Criminal Procedure, and especially: 1. Upon the ground that the •court had misdirected the jury in matters of law to which the defendant had excepted. 2. On the ground that the verdict was •contrary to the evidence. 3. On the ground that the verdict was clearly against the weight of evidence. This motion was denied. From the judgment and the order denying the motion for a new -trial the appellant appealed to this court.

      James JR. JBaumes, for the appellant.

      John P. Grant, for the respondent.
   Martin, J.:

The material issue in this case was whether the defendant killed Nobert Peasley under such circumstances as to constitute a crime or whether such killing was justifiable.

That being the principal issue in the case the court charged: “ If you shall believe that the defendant was justified in this attack, and I mean by that if you shall be convinced by the evidence beyond ■reasonable doubt that he was justified in it, then your verdict shall be not guilty.” Thus the court, in effect, instructed the jury not •only that the defendant must justify his attack thereby casting the burden of proof upon him, but that he must bear such burden to-the extent of establishing such justification- beyond a reasonable^ doubt. Manifestly, this was error.' (Stokes v. People, 53 N. Y., 177; People v. Downs, 123 id., 558; People v. Hill, 3 N. Y. Supp., 564; People v. Riordan, Id., 774; affirmed, 117 N. Y., 71.)

The charge being erroneous, we cannot say that the defendant, was not possibly injured or prejudiced by the error, although the-court correctly instructed the jury upon this question in other parts, of the charge. (Greene v. White, 37 N. Y., 405.) For this error,, we think, the judgment and order should be reversed.

Moreover, we are disposed to think that the trial court should have-received the evidence of the witness, Amasa B. Waters, taken on. the former trial. That such evidence was admissible, if the proof of the death of the witness was sufficient, there can be no doubt. While it may be that the proof was insufficient to establish the fact of death in an action where it was a direct issue, yet, as. the question arose in this case incidentally or collaterally, we think the evidence was sufficient to have justified the court in admitting the former-testimony of the witness.

The judgment and order reversed and the clerk directed to enter-judgment and remit a copy thereof with the return and decision of this court to the clerk of Delaware county, pursuant to sections 547" and 548 of the Code of Criminal Procedure.

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

Hardin, P. J.:

Hpon the trial the defendant offered to read the evidence of Amasa B. Waters, given upon the former trial. The testimony was important and material, tending to support the defense. It was-objected to and excluded. At the time the' evidence was given by the witness he resided in Georgia, and was past seventy-seven years of age. To the exclusion of the evidence an exception was taken. Prior to the evidence being offered on this trial, evidence was given tending to show that the witness had returned to the State of Georgia. We think sufficient evidence was offered tending to establish the death of the witness, and that his death was established prima, faeie, and that it was erroneous to exclude it. While the ruling is in some sense a matter of discretion, we think that it is. reviewable. (Jackson v. Waldron, 13 Wend., 199.) Section 392 of the Code of Criminal Procedure provides that the rules of evidence in civil cases are applicable also to criminal cases. The People v. Murphy (101 N. Y., 126), recognizes the rule laid down in the section just mentioned. It seems to be well settled that where the question of the death of the party or witness is involved collaterally or incidentally, “ resort may be had to what is commonly said and understood to be true among the immediate relatives and family connections of the party to whom the inquiry relates.” (Clark v. Owens, 18 N. Y., 442; 2 Greenleaf’s Evidence, p. 263, § 78; p. 266 and note.)

In Bradley v. Mirick (25 Hun, 272), the testimony of a witness was offered on a second trial, he having died subsequent to the first trial; an objection was taken that inasmuch as he was not cross-examined on the first trial that his testimony ought to be excluded; it was so excluded by the trial court. "We held this was error, and our decision was affirmed in the Court of Appeals (91 N. Y., 293), as appears by the opinion, although a note accompanying the syllabus erroneously states that the case was reversed. In Jackson v. Etz (5 Cowen, 319), it was said: The fact that a soldier, or any other individual, was missing at a particular time, accompanied with a report and general belief of his death, must be, in many cases, not only the best, but the only evidence which can be supposed to exist of his death. It is, perhaps, reasonable that it should be held prima, facie sufficient. (Doe v. Griffin, 15 East, 293.) ”

The evidence of "Waters was erroneously excluded. The foregoing views, as well as those expressed in the opinion of Martin, J., lead me to vote for a reversal of the conviction.

Judgment and order reversed and the clerk directed to enter judgment and remit a copy thereof with the return and decision of this court to the clerk of Delaware county, pursuant to sections 547 and 548 of the Code of Criminal Procedure.


source: Caselaw Access Project

author: Hardin, P. J.:

license: Public Domain

text:
    DAVID W. HOAG, Respondent, v. EDWIN O. PIERCE, Appellant.
    Hasement— use of a public well — right acquired by dedication — its violation enjoined.

    David W. Hoag and Edwin O. Pierce eacli owned a hotel upon the same street in a village on which, opposite the premises of Pierce, in the street and eight feet distant from the curb, was a well, which had existed there for fifty years; had been kept in order by contributions from the neighbors, including Hoag, and had been commonly used by the persons of the vicinity. Pierce having threatened to make changes in the well, which would result in his having the exclusive use of it, Hoag brought an action to restrain him from so doing and obtained an injunction.
    Upon the trial of this action the court found that the well was not on the premises of Pierce, but was in the village street.

      Held, that the action could be maintained and that an injunction was proper.
    That a well could be dedicated to the use of the public, and that it was not necessary to adopt any particular form or ceremony in so doing.
    Appeal by the defendant Edwin O. Pierce from a judgment of the Supreme Court, entered, after a trial by the court at the Onondaga Equity Term, in the office of the clerk of the county of Onondaga on the 18th day of March, 1891, perpetually enjoining the defendant from closing a well or interfering with the plaintiffs use of it.
    The parties owned parcels of real estate situated on the south side -of Main street, in the village of Elbridge, upon which properties are -two hotels. In Main street, opposite the premises of the defendant, some eight feet outside of the curb-stone and south of the center line of the street, is situated a well in which is a pump, from which water has been drawn for the use of sundry persons residing in the ■vicinity for a period of some fifty years; apparently the pump -was kept in order by contributions from the persons .using the water from the well. Defendant was about to insert a pipe in the well and to conduct the water into that portion of his premises embraced within the inclosure thereof, and to remove the pump and to prevent the plaintiff and others from enjoying the use of the well as it has been enjoyed by the plaintiff and his predecessors in title and other neighbors for a great period of years. This action was brought to restrain the defendant, and an injunction obtained and continued down to the trial and made permanent by the decision at the trial. In the complaint it is alleged as follows: “And plaintiff alleges on information and belief that' said defendant is the owner of-the premises in said village, described as follows, to wit: All that tract or parcel of land situate in the village of Elbridge, county of Onondaga and State of New York, being part of lot number 83 in said town, consisting of the hotel property in said village, bounded and described as follows, to wit: On the north by Main street; on the -east by South street; on the south by lands of the late Mrs. Carpenter, and formerly owned by Newell O. Merriman ; on the west by land formerly owned by J. & E. Ingerson and the estate of Nathan Munro, containing one acre of land, be the same more or less, said premises being commonly known as the Munroe House in said village.” In another part of the complaint it was alleged as follows : ■“And plaintiff further alleges, on information and belief, that said well is not on the premises of the said defendant, the same being within and upon the land of said Main street, and about twelve feet north of the defendant’s north line, and the south line of said Main street. That neither the said defendant nor any other private person has any right whatever to remove or fill up, or change or alter said well or its location, or to do any other act or thing whatever ■(except to use in common with numerous other persons, herein described and mentioned, the waters thereof), which may in any way or manner abridge or interfere with the free and unobstructed ■use of and the right to the use of the waters of said well by the said public, including the plaintiff, and the numerous other persons described and referred to herein.”
    In the answer of the defendant it is alleged: “And the defendant, for further answer to said complaint, alleges that he is the owner in fee of the premises upon which said well is located; that said premises are described as follows: ” (Then follows a description like the •one which has been quoted from the complaint).
    The trial court found: “ That the well mentioned in the complaint was dug more than fifty years ago in the public highway running easterly and westerly through the village of Elbridge and about twelve feet from the south bounds of said street, between the sidewalk on the south side and the beaten track of carriages and teams. And the said well has stood there ever since and its waters have been enjoyed by many persons, including the plaintiff, residing-in the immediate vicinity and their predecessors and grantors for more than twenty years before the commencement of this action, such waters having- been so used by the plaintiff and said persons as their water supply for domestic use; ” and also found “ that the plaintiff is the owner or occupant of the premises used by him as a residence and hotel in the immediate vicinity of said well, being a few rods westerly on the south side of said street, and that he has been such occupant and in possession thereof for about four and a half years under a contract to purchase the same, and that for more than twenty years prior to the commencement of this* action he and his predecessors and grantors had continuously and uninterruptedly used the waters from said well, and his predecessors for more than twenty years before his occupancy began had so used the waters, and that the plaintiff and his predecessors and the other persons using said waters and their predecessors had contributed to keep said well in repair, the expense being in part defrayed by subscription.”
    The court also found, as a matter of fact: “ That the defendant is the owner and occupant of certain premises adjacent to the south side of said street north of which the well is located, but is not and was not at the commencement of this action the owner of said well nor of the land in said street within which said well is situated.”
    And also: That the defendant “wrongfully and without right threatened to and attempted to take up said well and to close up the well and conduct the waters thereof, by means of a pipe under the surface of the ground, within an enclosure on his own premises formed by his buildings and a high and close-board fence and partition which he had built previously, and that the effect of said act would be to deprive the plaintiff and others of like interest of access to said well, except by defendant’s consent, which acts were restrained by the temporary injunction granted in this action.” And also: “ That the plaintiff and the other persons of like interest, by the open and uninterrupted use of said well by himself and his predecessors in the ownership of said premises occupied by him, and having so used the same for more than twenty-five years next preceding the commencement of this action, and without hindrance or objection from the real owners of said well, has acquired, as against the defendant, the right to use said well in the way he and they had been accustomed to use it.”
    As conclusions of law the court found: “ That the plaintiff had the light, as against the defendant, to the use of said water at the time of the commencement of this action, and now has it, and that the defendant-had no right to do the acts threatened or attempted by him, or to close or cover up said well, or to conduct the waters thereof upon his own premises; nor had the defendant the right to do any act which would impair, abridge or interfere with the right of the plaintiff to use and enjoy the waters of said well in common with others of like interest, except the right to use the same in common with the-plaintiff and said persons; that the plaintiff had the right to bring this action to restrain the defendant from doing the acts threatened or attempted by him’, and he is entitled to the following judgment and relief, as against said defendant, viz. :
    “ I. That it be adjudged that, as against this defendant, the plaintiff and others of like interest have the right to perpetually draw and use the waters from said well in common as heretofore.
    “ II. That the defendant, his agents, servants, heirs and assigns, be perpetually enjoined and restrained from interfering with said well, and from taking up or filling up said well, or removing the same or said pump, and from any and all acts that may impair, abridge, hamper or interfere with the rights of plaintiff and others of like interest in the use of the water of said well in its present location, excepting that the defendant may use the same in common with plaintiff and said other persons.”
    Exceptions were filed by the defendant to several parts of the decision, and to the refusal to find in accordance to several requests made by the defendant.

      A. W. Shurtleff and Lords Ma/r shall, for the appellant.

      Fram/e L>. Wright and F. O. Gushing, for the respondent.
   Hardin, P. J.:

It is insisted in behalf of the appellant that by the pleadings it was conceded “ that the defendant was the owner in fee of the land on which-the well stood.” In the complaint it was alleged “that, said well is not on the premises of the said defendant, the same being witbin and upon the land of said Main street, and about twelve feet north of defendant’s north line and the south line of said Main street.” Reading that allegation in connection with the averment in the earlier part of the complaint, to the effect that the premises of the defendant were bounded on the north by Main street, it must be assumed that the words of description found were used for the purpose of indicating, in a general way, the occupation •of premises by the defendant. Again, upon the trial, it is apparent that the position was taken by the plaintiff that the defendant only ■owned to the side of the street, and the plaintiff gave evidence tending to support that position; and the defendant so understood, during the progress of the trial, and gave what evidence he was able to upon the issue of the actual ownership of the well in question. N 0 attention seems to have been called to the peculiar language of the answer relied upon now by the defendant with a view of sustaining his position that the complaint, in effect, averred ownership in the defendant of the well in question. "We, therefore, think the court was called upon to find, as a matter of fact, and determine whether or not the defendant owned the well in question. Upon that subject plaintiff furnished evidence from the earlier deeds relating to the defendant’s premises, showing that his premises were bounded by the south side of Main street, and, therefore, that he was not an owner to the center of the street. Besides, it appears by the evidence that as early as the year 1800, by chapter 78 of the laws of that year, the “old Seneca Turnpike, or Seneca Turnpike,” was incorporated, and it was conceded that, pursuant to said chapter 78 of 1800, that “ it was empowered to acquire and hold to itself and successors forever, lands, wherever it should deem it most convenient to build its road between Utica and Cayuga county, N. Y.” Evidence was given tending to show that the turnpike company occupied the premises where the well is situated for a long period of years, and down to the time when “it was turned into a planlcroad company.” By chapter 97 of the Laws of 1850 the Seneca Road Company was authorized to sell or to abandon its road or parts thereof. By chapter 87 of the Laws of 1851 it was provided that if the plank-road company should abandon its road, the property should become the property of the town. It appeared by the •evidence of Luke Ranney that the Seneca Road Company operated its road “ until it was turned into a plank-road company.” It appears by the evidence that it bas not been operated either by the Seneca Company or by the Planlc-Road Company for more than twenty years, and that the street has been under the care, supervision and in the use of the incorporated village of Elbridge, at the place where the well is situated. It seems, with this evidence before the court, the assumption that the road-way or well was owned by the village of Elbridge was warranted; and that being so, the language found in the defendant’s deed was “ satisfied by the title extending only to the roadside,” according to tíre rule laid down in Dunham v. Williams (37 N. Y., 251), especially when we recall that the earliest deeds in the defendant’s chain of title bounded the premises occupied by the defendant, on the north by the south bounds of Main street.

Dunham v. Williams (supra), was referred to approvingly in Kings County Fire Insurance Company v. Stevens (87 N. Y., 287), and at the close of the opinion in that case, Andrews, Ch. J., said: “ The side of the road may have been made the boundary of the land conveyed, upon the mistaken supposition that the company had acquired, by the proceedings for condemnation, the absolute title to the land taken, or some other reason may have existed for restricting the grant. But we have no guide in ascertaining the intention of the parties to the conveyance, outside of the language of the deed, and upon this language, as interpreted by the courts of this State in analogous cases, we think the southerly side, and not the center of the Wallabout road, is the boundary.” We think the trial judge was warranted in applying that rule to the case made before the Special Term.

( 2.) It was made apparent by the evidence upon the trial that the plaintiff and his predecessors in interest for more than twenty years had enjoyed the use of the well, and had, from time to time, contributed to the expense for the maintenance of a pump therein under an assumption of and claim of right to the use of water from the well.

The learned counsel for the defendant calls our attention to Burbank v. Fay (65 N. Y., 65); in that case it was held : “No private use or occupancy, whether adverse or by permission, however long continued, will vest a title inconsistent with the public right, or will impair or affect the rights of the State.” It seems that the use made of the well in question by the plaintiff, as well as others, was not inconsistent with the public right in the street; did not interfere with the right of way or public passage; on the contrary, contributed to the comforts and needs of the public for a long series of years ; and the enjoyment of the waters of the well and of the use of the pump by the plaintiff in no way tended to interfere with the public passage, or use of the street or highway.

In Meyer v. Phillips (97 N. Y., 489), referred to by the appellant, the use made of a stream across the plaintiff’s land had been for only a few years in floating logs, and it was, therefore, held that there had been no easement acquired by prescription. We see nothing in the case which aids the appellant.

The evidence before the Special Term warranted the finding that the defendant contemplated not only removing the water by means of a conduit from the well into his inclosure, but that he threatened to and contemplated a destruction of the pump. The plaintiff had contributed and had a proprietary interest therein which the defendant was not entitled to destroy as he threatened to do before the commencement of this action. We think, from the evidence before the Special Term, the conclusion reached that the defendant should be restrained from conducting the waters awray from the well, covering up and destroying the usefulness of the. well, and taking down, removing and destroying the pump then in use in the well, towards the purchase of which the plaintiff had contributed, was warranted.

In the City of Cincinnati v. The Lessee of William White (6 Pet., 481) it was held: “There is no particular form or ceremony necessary in the dedication of land to public use. All that is required is the assent of the owner of the land, and the fact of its being used for the public purposes intended by the appropriation.”

In the course of the opinion in that case, in considering public dedications, and a dedication of an easement for the use of the public, it was said that the doctrine was applicable to dedication of lands to public use, and that the doctrine had been applied by that court “ to the reservation of a public spring of water for public use in the case of McConnell v. The Trustees of the Town of Lexington (12 Wheat., 582); ” and the court added: “ The reasonableness of ■reserving a public spring for public use; the concurrent opinion of all the settlers that it was so reserved; the universal admission of all that it was never understood that the spring lot was drawn by any person, and the early appropriation of it to public purposes, were •decisive against the claim.” (See Denning v. Roome, 6 Wend., 657.)

We think the decision made at the Special Term should stand.

MaetiN and Mekwiet, JJ., concurred.

Judgment affirmed, with costs. '


author: Macomber, J.:

text:
    DELOS RIDDLE, Appellant, v. THE VILLAGE OF WESTFIELD, Respondent.

      Highways — a defect in a street caused by the act of the corporation — no proof of actual notice is necessary.

    Delos Riddle was driving a horse along a village street when the horse sank into a soft place and was injured. It appeared that the village had laid a water-main through the street about a month before; that the ditch had been filled with loose earth not properly packed in, and it could be reasonably inferred that the surface of the street sank from this cause.
    In an action brought by Riddle against the village to recover the damages resulting from the injury to his horse;

      Held, that as the unsafe condition of the street was not caused by the act of another, hut by the village itself, it was not necessary that the plaintiff should prove-actual or constructive notice of the defect to the village in order to recover.
    Appeal by the plaintiff Delos Riddle from a judgment of the-Chautauqua County Court, entered in the office of the clerk of Chautauqua county on the 5th day of January, 1891, reversing-a judgment in favor of the plaintiff recovered in ,a Justice’s Court.

      8. W. Mason, for the appellant..

      H. O. Kingsbury, for the defendant, respondent.
   Macomber, J.:

At tbe trial, wbicb was bad before tbe justice of tbe peace and a, jury, tbe plaintiff recovered a judgment for fifteen dollars, tbe undisputed value of bis borse. While driving along tbe street tbe horse suddenly fell or sank into a soft place and there received such, injuries as to render him worthless.

Tbe learned county judge reversed tbe judgment of tbe Justice’s. Court upon tbe ground, that tbe plaintiff gave no evidence that tbe defendant’s trustees bad any knowledge or notice of the defective-highway, or that the defect had existed so long as that knowledge thereof might be inferred. There being, therefore, no notice to tbe village trastees, either actual or constructive, be was of tbe opinion that tbe recovery could not be sustained. The principle stated by tbe learned judge is, undoubtedly, correct, as is shown by tbe case of Pomfrey v. Village of Saratoga Springs (104 N. Y., 459). But there is an exception to tbe general rale, wbicb is as well defined and stable as tbe rule itself, and that is: That where tbe unsafe condition of the street is caused directly by tbe act of tbe corporation itself, or its agents, liability for injuries sustained attaches directly, and not through tbe doctrine of notice, either express or constructive. (Turner v. City of Newburgh, 109 N. Y., 301.)

We are disposed to think that this case comes within tbe exception to tbe rule, and that upon the evidence tbe plaintiff was entitled to have tbe jury say whether bis loss was ascribable to any omission of duty wbicb the defendant owed to him as one of the traveling public.

As a municipal corporation the defendant bad tbe care and management of tbe village streets. By its water commissioners tbe defendant had laid a water main through West Main street, adjacent to and so near tbe center of tbe street as to render it likely that a passing team might naturally come upon tbe surface of the ditch without fault of tbe driver. When passing along in tbe usual manner in wbicb such horses are accustomed to be driven, the’, plaintiffs horse slumped into tbe place of tbe ditch. Tbe question, before tbe jury was why did tbe borse go in there ? Was it through the fault of tbe defendant? The accident happened March 1,1890. Tbe water pipe bad been laid by the defendant’s agents about a, month or two before, and instead of properly packing the ground in the usual manner the ditch was filled with loose earth which would be liable to give way in the spring, as it did, in fact, in this instance. There is a suggestion made in the opinion of the learned county judge that the accident might have been caused by the bursting of the water pipe in the ditch. But we find no evidence to sustain such an hypothesis. The testimony, it is true, which the justice of the peace has sent up is meager and fragmentary, as is usual in appeals from that court; but enough, we think, appears to show that the jury was supported by evidence, and the proper inferences to be drawn therefrom in finding that the defendant so unskillfully covered the water-pipe trench as needlessly to jeopardize ' travelers.

On the whole, we think the judgment of the County Court should be reversed and that of the justice of the peace sustained.

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

Judgment of the County Court of Chautauqua county reversed and the judgment of justice of peace affirmed, with costs to the plaintiff of the appeals to the County Court and to this court.


text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. MOSES ELFENBEIN, Appellant.

      Bottling act — the ma/rks of ownership must he inerasable — possession of a hottle with a lithographic label pasted on it.

    Chapter 377 of the Laws of 1887, as amended by chapter 181 of the Laws of 1888, was designed to protect the owner of bottles and other vessels whose name, mark or device was “branded, stamped, engraved, etched, blown, impressed, • or otherwise produced,” upon them. Moses Elfenbein, who was convicted of violating this act, had in his possession a bottle used for mineral water, upon which was a lithographic label bearing the name of Anthony Young, who was engaged in the bottling business. There was no stamp or cut on the glass itself, the label being affixed with common paste.

      Held, that the conviction could not be sustained.
    That it was not covered by the expression, “or otherwise produced.”
    That this phrase must be read in connection with the preceding words, which contemplated that an inerasable mark should be made on the bottle or vessel.

      Appeal by the defendant Moses Elfenbein from a judgment of the Court of Sessions of Erie county, entered in the clerk’s office of that county on the 25th day of May, 1892, affirming a judgment rendered in the Police Court of the city of Buffalo, which had convicted Elfenbein of a violation of chapter 377 of the Laws of 1887, as amended by chapter 181 of the Laws of 1888.

      Emory P. Glose, for the appellant.

      Tracy O. Beclcer, for the respondent.
   Macomber, J.:

The appellant was convicted before the police justice of the city of Buffalo on the 9th day of April, 1892, for violation of the above-mentioned act. This conviction was affirmed on appeal to the Court of Sessions, and from the judgment of the last-named court this appeal is taken.

There was found in the defendant’s possession a bottle, like a quart bottle often used for apollinaris water, and it was claimed that the same was a violation of the rights of one Anthony Young, who was engaged in the manufacture, bottling and selling of mineral waters. The name of Anthony Young was upon a label which had been lithographed and pasted on the bottle with common paste. There was no stamp or cut of the name made into the glass itself. The only question, therefore, in this case is whether or not the possession and use of bottles of this kind, with a printed or lithographed lab'el pasted upon them containing the name of the original owner, is a violation of this statute^

The first section of the statute is as follows: “ Sec. 1. Any and all persons and corporations engaged in manufacturing, bottling or selling soda waters, mineral or aerated waters, porter, ale, beer, cider, ginger ale, milk, cream, small beer, lager beer, weiss beer, white beer or other beverages * * * in bottles, syphons, tins or kegs with his, her, its or their name or names, or other marks or devices branded, stamped, engraved, etched, blown, impressed or otherwise produced upon such bottles, syphons, tins or kegs, or the boxes used by him, her, it or them, may file in the office of the clerk of the county in which his, her, its or their principal place of business is situated, and also in the office of the Secretary of State, a description of the name or names, marks or devices so used by him, lier, it or them, respectively, and cause sucli description to be printed once in eacli week, for three weeks successively, in a newspaper published in the county in which said notice may have been filed as aforesaid, except that in the city and county of New York, and the city of Brooklyn, in the county of Kings, such publication shall be made for three weeks successively in two daily newspapers published in'the cities of New York and Brooklyn respectively.”

The second section renders it unlawful for any person to fill such bottles with any of the materials above mentioned, or with other beverages, or with medicines, compounds, or mixtures so marked, or to deface, erase, obliterate, cover up or otherwise remove or conceal any such name, or sell, buy, give, take or otherwise dispose of the same without the written consent of, or unless the same shall have been purchased from, such person or persons.

By the fourth section of the act search warrants may be issued and possession of the property taken which shall be found to be held or used in violation of the act, and such property shall be turned over to the owner thereof.

This conviction cannot be upheld. The statute does not cover the case of printed or lithographed labels. A piece of paper thus pasted upon glass bottles is not, in any sense, branded, stamped, engraved, etched, blown or impressed upon the glass itself. But counsel for the people rest their argument almost exclusively upon the meaning of the following expression: Or otherwise produced upon such bottles, syphons or kegs or boxes,” etc. The meaning of the word “ produced,” it is argued, is any method of bringing forth to view any matter or thing. This definition, undoubtedly, is correct so far as it goes, but it is not applicable, as it seems to us, when taken in connection with the preceding words of the statute — branded, stamped, engraved, etched, blown, impressed. All of these words are aptly chosen to indicate a permanent and inerasable name or mark upon the bottle, kegs or boxes in which the stuff named is contained. The expression “or otherwise produced upon such bottles, syphons, or kegs or boxes,” etc., is not satisfied and the crime against the defendant made out by proving that he pasted the printed or lithographed label upon the particular vessel mentioned. In this instance Young’s name was not produced upen ” the bottle. It bad been produced elsewhere, and at other times before the same was pasted upon the bottle. The expression “ or otherwise produced upon such bottles/’ etc., relates to the same means of engraving upon the bottles, etc., as the other preceding words indicate, namely, something that is developed out of the surface of the bottle by engraving, etching or blowing, or other like means whereby an inerasable impression is produced.

If this view be correct, whatever may be the other questions con•tained in the case, it follows that the conviction cannot be upheld, .and that, consequently, the judgment appealed from should be reversed.

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

Judgment of the Court of Sessions of Erie county appealed from reversed and the defendant discharged.


text:
    ALLISON K. HUME, Plaintiff, v. EDWARD C. RANDALL and Another, Defendants.

      Marketable title — a reservation by a grantor of the control and, profits of lands — life estates therein with a power to devise — it does not create afee.

    Allison K. Hume, having agreed to sell certain lands to Edward C. Randall and another, tendered a deed of the premises, to which it appeared that Hume’s grantors, Sarah A. Cornell and Laura S. Beal, derived title under a deed from William S. Van Duzee and wife, which provided that Hume’s grantors should have an equal interest in the property, and should control it during their natural lives after the death of William S. Van Duzee; that if one died the other should have control, after the death of Yan Duzee, during her life; that neither should convey without the written consent of Yan Duzee, and that they might j ointly, or the survivor might devise it; that Yan Duzee should control it and the profits during his life, hut that the profits should go for the benefit of his grantees, to he equally divided between them, and that after the decease of one the survivor should take all the profits.
    At the time of the tender Yan Duzee and his wife were dead and both his grantees were living.

      Held, that the title was not merchantable.
    'That Sarah A. Cornell and Laura S. Beal took only a life interest with power to dispose of the property by will.

      That they had no present right to the profits, except through a species of trust created hy Yan Duzee himself.
    That they could not, therefore, dispose of the entire fee, and, in fact, were expressly forbidden to do so.
    That the power given them to devise the real estate at the'end of the life estate did. not create a fee in the life tenant.
    SuBMissioN of a controversy between Allison K Iiume, as plaintiff,, and Edward C. Randall and Huntington R. Renyon, as defendants, upon an agreed statement of facts under section 1279 of the Code of Civil Procedure. '

      Frcmk F. Williams, for the plaintiff.

      Jesse H. Behrends, for the defendants.
   Macomber, J.:

The parties to this submission entered into a land contract on the 13th day of February, 1892, by which the plaintiff agreed to sell and the defendants'to buy the lands described in the submission, under the terms of payment not necessary to be set forth in detail. • Py this agreement the plaintiff contracted to give by warranty deed a good and sufficient title to the lands so sold. At the time named in the contract for the fulfillment of the agreement both parties-were ready, the one tendering a warranty deed and the other performance on his part; but the latter objected to the title offered by the plaintiff and refused, to receive the same upon the ground that-it was not a good merchantable title to the land.

The special objection raised to the plaintiff’s title was, that it was-not good for the reason that he obtained it by virtue of a deed which, though containing a covenant of warranty duly executed by one Sarah A. Cornell and one Laura S. Beal, his grantors, and properly-acknowledged by them, was imperfect, because it was derived by them from one William S. Van JDuzee and Oral H. Van Duzee his wife, by deed recorded February 2, 1883, and that the last-named persons did not have an absolute title to nor power to convey the lands in fee simple. The deed from Van Duzee and wife to Sarah A. Cornell and Laura S. Beal (the latter the grantors of the plaintiff), purported to convey the lands in question in the usual form, so far as the granting clause is concerned, but had in the body of the-deed the following: “It is hereby intended and understood that the parties of the second part (Sarah A. Cornell and Laura S. Beal) shall both have an equal and undivided interest in the property conveyed above, and said parties shall control and direct said property during their natural life after the decease of William S. Yan Duzee, one of the parties of the first part. If one of the parties of the second part should be taken away by death, the other party shall have the control during her natural life after the time mentioned above, but neither party or both shall have the right to convey away this property by deed or other forms during their lives without the written consent of William S. Yan Duzee, one of the parties of the first part,'but it may be arranged to be disposed of by will by one of the second party who shall survive the other, or by a mutual will as the parties may agree, which will shall take effect after the death of both parties of the second part mentioned above. Said Yan Duzee shall have the full control of said property and its products during his natural life, but the products, interest and issues of said property shall go for the benefit of the parties of the second part. It being understood that said products, interest and issues shall be equally divided between the parties of the second part, but after the decease of one of the second party the survivor shall have the said rents, products and issues at her use and control. And it is further stipulated that if either of the parties marry mentioned above, then the other party shall have full control and possess the entire premises herein deeded.”

William S. Yan Duzee and Oral H. Yan Duzee ai’e both dead. Sarah A. Cornell and Laura S. Beal are both still living; this latter fact does not appear in the printed submission, but it was so stipulated by counsel at the time of the argument.

We are of the opinion that under the foregoing provision or condition in the deed the grantees, Sarah A. Cornell and Laura S. Beal, did not take an absolute fee of the premises, -but only a life interest therein, with a power to them to dispose of such title by will, either by the survivor of them or jointly. If this be so, it follows, as a matter of course, that their title is not a merchantable one, and that the defendants are not, upon that ground alone, bound to fulfill their part of the agreement. The true construction of this deed, it seems to us, is that the grantor should, during his lifetime, manage the land and receive tlie rents and profits thereof, not to his own use, but for the use of the grantees. There did not exist in the grantees a right to the profits and income of the real estate, except in this way, which was in some sort a trust created by the grantor himself. The ease does not come under section 85, article 3, title 2, ■chapter 1, part 2 of the Revised Statutes, whereby any power of •disposition shall be deemed absolute, by means of which the grantee is enabled, during his lifetime, to dispose of the entire fee for his •own use and benefit. The grantees did not possess this right or power. Indeed, they were, in terms, expressly forbidden so to dispose of it. As was said by the court in Cutting v. Cutting (86 N. Y., 522): The revisers say that in reason and sense there is no distinction between the absolute power of disposition and the absolute ownership (5 Edm. Stat. at Large), and that it is an affront to common sense to say that a man has no property in that which he may sell when he chooses, and dispose of the proceeds at his pleasure.”

The terms of the statute in defining an absolute fee do not include a power to appoint by will. It is manifest that a power to devise real estate at the end of the life estate does not bring with it a fee in the life tenant which may be disposed of by deed; such a title alone grows out of a right or power by which the grantee is enabled, in his lifetime, to dispose of the entire fee for his own benefit. By the terms of the deed in this case, this was affirmatively prohibited. (See, also, Crooke v. County of Kings, 97 N. Y., 421; Genet v. Hunt 113 id., 158.)

Ye are of the opinion, therefore, that the deed of William S. Yan Duzee and wife to Sarah A. Cornell and Laura S. Beal did not vést in the grantees the absolute fee of the premises described after the death of Yan Duzee and wife, and that consequently the warranty deed of said Cornell and Beal to the said Allison K. Hume, the plaintiff, did not convey to him an absolute fee of the premises.

It follows, therefore, that the defendants are not obliged to complete their purchase of the premises, or accept the deed tendered.

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

Judgment ordered for the defendants on the submission.


text:
    CHARLES M. TOMPKINS and Others, Appellants, v. CHARLES HUNTER and Others, Respondents.

      fraudulent conveyances— a contemporaneous agreement that the debtor will not thereafter make a general assignment.

    Cliarles ¡M. Tompkins and others, under indebtednesses existing on and prior to April 19, 1890, were judgment-creditors of Charles Hunter, who was insolvent to his own knowledge and to that of his largest creditor, a hank. On April 21, 1890, Hunter determined to discontinue business and transferred all his property to the hank in payment of a tona fide indebtedness to it, under an arrangement between the hank and Hunter that he should not thereafter make a general assignment for the benefit of his creditors.
    In an action brought by Tompkins and others, the judgment-creditors of Hunter, attacking this transfer, it was Held, that the action could be maintained.
    'That the agreement between the bank and Hunter, that the latter should not after his transfer to the bank make an assignment, made such transfer fraudulent as to the other creditors of Hunter.
    ’That thereby the bank undertook to control the future conduct of its debtor, in order that he should not, by the act of an assignment, raise the question of an improper preference.
    'The conditions which must exist, in order that a debtor may lawfully transfer all his property to one creditor for a bona fide debt, considered.
    Appeal by the plaintiffs, Charles M. Tompkins, Ray Tompkins, "William M. Tompkins, Henry L. Fassett, Elwood B. Crocker, ■Stewart D. Tompkins, John S. Sheppard, Baldwin’s Bank of Penn Tan, Calvin Russell and Clarence T. Birkett, from a judgment of the Supreme Court, entered in the office of the clerk of Tates county ■on the 3d day of February, 1892, dismissing the complaint, with ■costs, after a trial by the court at the Tates Special Term.
    The court, among other things, found, in reference to an alleged fraudulent transfer of property by one Charles Hunter to the First National Bank of Penn Tan, as follows :
    12. That at the time of making said transfer to said First National Bank of Penn Tan, as aforesaid, the said Charles Hunter had no intention of making a general assignment for the benefit of his creditors; and he never did, in fact, make any such assignment.
    13. That during the negotiations for the transfer of said property to the said First National Bank of Penn Tan, in payment of the debts as aforesaid, it was stated that the said property was all the property of said Hunter; that the defendant did not intend to make a general assignment, and the question whether or not such a transfer could be made to said bank without violation of law was a subject of consultation between said Hunter and the president of said bank and its legal adviser, and the said transfer in payment, as aforesaid, was made as the result of said consultation.
    14. That all the negotiations between the said' Hunter and the president of said bank, preceding the execution of the conveyance and the assignment hereinbefore mentioned, had reference to the sale by Hunter to the bank of his real and personal property in papment of his debts.

      WillÁam F. Oogsvjell, for the appellants.

      Fdward Harris, for the respondents.
   Macomber, J.:

The plaintiffs, severally, are judgment-creditors of the defendant Charles Hunter. The consideration for the judgment in each case arose upon an indebtedness existing prior to the 19th day of April,. 1890, the time when the principal transaction involved in this appeal took place. Prior to this date Mr. Hunter had been engaged in business in Penn Tan as a grocer and produce dealer. He was possessed of a considerable amount of real estate. He owed debts amounting in all to $36,000, the most of which, namely, the sum of $29,000, was owing to the defendant, the First National Bank of Penn Tan. He was at this time unable to pay the whole of his indebtedness, and was actually insolvent to his knowledge and to that of the officers of this bank. Thereupon the debtor determined to-discontinue his business, and announced such determination to the president of the bank. He proposed that he should convey and assign to the bank all his real and personal property not exempt from levy and sale on execution in payment of his liabilities to that corporation so far as the same would go. This proposition was accepted ; and on the 21st day of April, 1890, the debtor transferred, in writing, by assignment and conveyance to the bank all of his property, real and personal, except such as was, in fact, exempt from levy and sale on execution, including all debts and book accounts due to him. The amount of his property so turned over to the bank was $21,767.70. For this property the bank surrendered to Mr. Hunter notes to that amount, less the sum of $1,600, which last-named sum was applied upon a note for a greater amount held by the bank upon which Hunter was liable. This property was received by the bank in actual payment of a bona fide indebtedness to it by Mr. Hunter, to whom his notes were surrendered. It is found by the trial court that, at the time of making this transfer, the debtor had no intention of executing a general assignment for the benefit of his creditors, and that, in fact, he never did make any such assignment. During the negotiations between the debtor and the bank officers it was stated that this property was all the property which Hunter possessed. The court found, as a fact, “that the defendant did not intend to make a general assignment, and the question whether or not such a transfer could be made to said bank without violation of law, was a subject of consultation between said Hunter and the president of said bank and its legal adviser, and the said transfer in payment aforesaid was made as the result of said consultation.” (13th finding.) The bank immediately took possession, and has continued in possession, of the property since that time. The sixteenth finding is as follows: “ That, in making said transfer, the intention of said Hunter was simply to pay his debts to the said bank so far as his property was sufficient therefor, and the intent of the said bank was simply to receive payment of the debt owing from Hunter.”

As a conclusion of law, the learned justice at Special Term decided that such transfer was not such a preference as is forbidden by the general assignment act and was valid, and he accordingly dismissed the plaintiff’s complaint.

There was no finding upon the question which was presented by the pleadings, namely, whether or not the transfer above mentioned was absolutely and wholly fraudulent and void as to creditors. Such issue was not specially and affirmatively determined in the findings one way or the other, but the court put its judgment solely on the ground that the transaction was not such a preference as is forbidden by the assignment act.

The general question is whether Charles Hunter, being insolvent to his own knowledge and to the knowledge of the defendant, the First National Bank of Penn Yan, and haring determined to abandon further efforts to continue his business, could legally make a -transfer to the bank of all his property liable for his debts in payment of the debt owing by him to the bank, leaving, to the knowledge of the officers of the bank, other creditors wholly unpaid and unprovided for, when the transaction is accompanied by an arrangement between the debtor and the creditor by which the debtor should not afterwards make an assignment of his property under the general assignment act lest the transfer might be questioned in .any future proceedings in the court.

This precise question has not, so far as I know, been actually decided by the courts of this State. The case of Dillingham v. Flack (17 N. Y. Supp., 879), held that when a grantor disposed of all his property, for the benefit of a portion of his creditors only, such conveyance is illegal and void, and the title of one claiming under a bill of sale thereof will not prevail against an attaching creditor. Manning v. Beck (54 Hun, 102), contains the views entertained at that time by this court where it was held, in substance, that a voluntary surrender by an insolvent debtor of dominion over his entire estate and the transfer of the whole, or substantially the whole, of his property to a portion of his creditors in order to give them a preference over others, whether made by one instrument or more, whatever form the same might take, when such transferred portion was an unlawful preference in fact, the assignment itself may be assailed by a creditor and the same set aside as a fraud upon the general assignment act. It was there that the case of White v. Cotzhausen (120 U. S., 329), was, for the first time, I think, attempted to be applied to the general assignment act of this State. The case then before us arose, however, not upon an appeal from a judgment, but from an order of the Special Term appointing a receiver and granting an injunction. The case was, therefore, presented upon ex parte affidavits.' It there appeared clearly, as it seemed to the court, that it was the purpose of the debtor, first, to transfer all of his property to a favored creditor, and then, lest such transfer should be assailed, in form to make an assignment under the general assignment act to a person whom he believed that he •could control, and who would not avail himself of the rights and privileges of a general assignee to bring actions to set aside fraudulent transfers of property by his assignor.

It there appeared abundantly that the creditor well knew of this scheme. That case was afterwards tried at the Special Term, and judgment was pronounced in favor of the judgment-creditors against the validity of the transfer, and against the validity of the assignment. The case was appealed to this court, and the decision of the Special Term was affirmed upon the opinion of the learned justice at the Special Term, as well as upon the former opinion of this court upon the appeal from the order appointing the receiver, etc. No state of facts was brought to our attention at that time which differed in any essential particular from those appearing upon the appeal from the order, yet, on appeal, the Court of Appeals decided that the trial court had failed to find that the creditor knew that it was the intention of the debtor, after stripping himself of his property in his favor, to go through the form of making an assignment, and accordingly a new trial was granted by that court. (Manning v. Beck) 129 N. Y., 1.)

This case, however, is not the'Manning and Beck ease, but exactly the converse of it. The evidence before us shows, and the findings of the learned justice are to the effect that in this instance the creditor, having taken alarm at the recent discussions of the legal questions arising upon transactions where one creditor had absorbed all the property of the debtor to the injury of other creditors, was careful to provide in the arrangement which he made with his willing debtor that no assignment under the general assignment act should be made. What is the legal bearing upon the general question of this particular fact ?

Is an agreement, by which the debtor should make an assignment after dispossessing himself of his property, of any greater moment than an agreement that he should not make an assignment of his property ? In both instances the creditor undertakes to, and does, so far as an agreement can do it, control the actions of liis debtor. At the time of the arrangement in the Manning and Beck case, by which an assignment should actually be made, it was thought, by most respectable counsel, that it would be the means of making effective the transaction by which' one creditor had taken all the property of the debtor who was owing many creditors. But later on, in the year 1890, when this transaction was completed, it was thought, by equally diligent creditors and competent lawyers, that it was better and safer not to have any such agreement as there was, or was supposed to be in the Manning case; and in order to make the thing effective it was believed, undoubtedly, that it would be advisable to have an affirmative understanding that such an assignment should not, in fact, be made. It seems to me that the fact in the one case is as much of a fraud upon creditors at large as in the other case. Why should the creditor named in this action have concerned itself with any future matters pertaining to the debtor’s estate if it were acting entirely above board, and only as an honest and diligent creditor may act; and who, when so acting, may,-from an insolvent debtor, receive property in payment of his debt in whole or in part?

In the Manning and Beck case it was contended by counsel for the appellant that no one could bring an action to set aside such a transfer of property save the general assignee, and that creditors themselves could not do so, so long as there was an assignee who might do so. In this case no such contention is made. But, on the contrary, it is argued that, under the general rule (well recognized and repeatedly stated by the courts, that creditors may be paid out o'f the property of insolvent debtors when the transaction is an honest one), the creditor may take all of the property of a debtor and then prevent any inquiry as to the propriety of it, by making an arrangement by which the debtor himself should afterwards do no act by way of making an assignment, or otherwise, which should jeopardize or question the propriety of such a transfer. The very existence of such an arrangement shows an intent on the part of the parties to the transaction not only to elude that general provision of the assignment act which prevents an insolvent debtor, when making a general assignment for the benefit of his creditors, to apply more than onetliird in value of his property as a preference, but shows further that the transaction is absolutely fraudulent.

It seems to me, therefore, that, under the evidence and the findings of fact, the agreement made between the debtor and the creditor showed that the transaction was wholly fraudulent as to creditors, as -well as an attempt at evasion of the general assignment law, and cannot be allowed to stand.

The case of Woodworth v. Hogdson (35 N. Y. St. Rep., 961, affirmed in 129 N. Y., 669, without an opinion) contains, I venture to think, no doctrine contrary to this. In that case there was no agreement whatever relating to the subject of making or not making an assignment. There the plaintiff had furnished, substantially, all of the capital to his son in order to set him up in the grocery business in the city of Rochester; and such business had proved to be a losing venture ; and the son had become discouraged and wished to turn over the property to his father for his indebtedness, and accordingly did so; whereupon the father took possession of the property. That was exactly the transaction so repeatedly upheld by the courts, that a creditor may take from a debtor any or all of In's property in payment of his debt, pro vided the transaction does not involve other matters rendering it void by reason of collision witli some equitable principle, or with a statute of this State.

In fine, it is the attending agreement either to make an assignment, as was done in the Manning and Reck case, or not to make it, as was done in this case, in both of which the creditor undertook to control the future conduct of the debtor, which shows a fraudulent intent of the parties, and renders void the transfer of property, though made in payment of a bona fide debt

Since the foregoing opinion was prepared, the attention of the court has been called to the case of the Central National Bank et al. v. Seligman et al. (64 Hun, 615; 47 N. Y. St. Rep., 17, Sept., 1892), which, in principle and reasoning, singularly fortifies the views already expressed. That case differed in the special facts involved from Manning v. Beck, and from this one, in that it followed neither ' of them in the mode adopted in getting advantage of some creditors, but combined the essential properties of both. Seligman Bros. & Oo., anxious to prefer certain creditors, confessed judgments and assigned certain accounts to them; and, in order that such judgments and transfer might not be attacked, the debtors made simultaneously a general assignment of ail their property for the benefit of creditors, ostensibly under the general assignment law, and it was mutually arranged that the assignment should go on record five minutes before the confessed judgments, which was done. But the general assignment, in pursuance of the general intent of the parties, was so skillfully drawn as to be void on its face, and was so treated. It was reasoned by the parties that the judgments and transfers of the book accounts, good, as was thought, against everybody save the assignee, would be unassailable, and the desired preferences completely accomplished. In an elaborate opinion the court held that such preferences were fraudulent and illegal, though made upon a Iona fide indebtedness, and that the moneys realized thereon could not be retained by the creditors so preferred for any part of their indebtedness, and that they must account therefor to the plaintiffs, -who were also creditors of Seligman Bros. & Co., and who obtained judgments subsequently to the assignment and confessions of judgments to the favored creditors.

For these reasons, I think, the judgment appealed from should be reversed.

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

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


text:
    LAWRENCE SALTSMAN, Respondent, v THE NEW YORK, LAKE ERIE AND WESTERN RAILROAD COMPANY, Appellant.

      Evidence — a bill of lading mentioning one destination, and an independent oral agreement to transfer goods to another — the oral agreement may be proved.

    In an action brought by Lawrence Saltsman to recover the damages resulting' from the loss of certain potatoes, which he alleged the New York, Lake Erie and 'Western Railroad Company had undertaken to transport from Avoca, N. Y., to Elkhart, Ind., the principal point at issue was whether the railroad company had made such an oral agreement or whether it had agreed to transport the potatoes only to Buffalo, its terminus. The bill of lading given to Saltsman by the railroad company recited in the earlier portion thereof; “Notify D. Carpenter, Elkhart, Indiana; ” and proceeded, in a subsequent part, as follows: “Which the N. Y., L. E. & W. R. R. Co. agrees to forward from Avoca, N. Y., to Buffalo, N. Y.”

      Held, that the plaintiff had a right to prove the oral agreement of the railroad company to transport the potatoes to Elkhart, Indiana, and that such agreement was not merged in the bill of lading.
    Appeal by the defendant, the New York, Lake Erie and Western Railroad Company, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Steuben on the 17th day of October, 1891, upon a verdict for the plaintiff for $354.99, damages, and also for costs, after a trial at tbe Steuben County Circuit before tbe court and a jury; and also from an order of tbe said court, entered in tbe said clerk’s office on tbe 2d day of October, 1891, denying tbe defendant’s motion for a new trial made upon a case and exceptions.
    Tbe action was based upon an alleged agreement to transport certain potatoes to Elkhart, Indiana, wbicb was, as tbe plaintiff alleged, an oral agreement made by bim with tbe agent of tbe defendant. >

      James E. Stevens, Jr., for the appellant.

      Miller <& Niehols, for tbe respondent.
   Macomber, J.:

This action was brought to recover damages for tbe loss of a certain shipment of potatoes caused by the negligence of tbe defendant,, who bad undertaken, according to tbe plaintiff’s contention, to transport tbe same from Avoca, N. Y., to Elkhart, Ind.

At tbe close of all tbe testimony the defendant’s counsel moved that tbe court direct a verdict in behalf of tbe defendant, which was denied, and thereupon plaintiff’s counsel made a like motion for a direction of a verdict for the plaintiff wbicb was granted.

Tbe sum recovered was the amount due and unpaid upon a draft annexed to a shipping bill. The controversy turns upon tbe question whether or not tbe contract entered into by the defendant was to carry tbe car-load of potatoes from Avoca to Elkhart, Ind., or only to Buffalo, N. Y., the terminus of tbe defendant’s railway. As we view the. case presented by the motions made by the respective counsel, this question was substantially left to the determination of tbe court alone, as no request was made by tbe counsel for tbe defendant to submit any question of fact to the jury. It is true that the respective motions for a direction of a verdict were not made concurrently ; but no question seems to have been raised at tbe trial which required tbe learned justice to submit any particular question' of fact to tbe decision of tbe jury. The principal contention made' against a recovery in this case is placed by tbe learned counsel for tbe defendant upon tbe ground that tbe written contract between tbe parties showed that the defendant’s undertaking was simply to cany the plaintiff’s produce from Avoca to the city of Buffalo. Tbe bill of lading was as follows:

“NEW YORK, LAKE ERIE & WESTERN RAILROAD 00,
Avooa StatioN, Nov. 7, 1887.
Received from L. Saltsman the following articles (contents unknown) in apparent good order, viz.:
Car of potatoes in bulk, car 37319, Order of L. Saltsman, Released & gtd.
Notify D. Carpenter.
Elkhart, Indiana.
L. S. & M. S. R’y. Claim Tbaoee.
.................45649
Claim Department.

Marked* and numbered as per margin, which the N. Y., L. & W. R. R. Co., agrees to forward from Avoca, N. Y., to Buffalo, N. Y.,- upon the following conditions, viz.: That the shipper or owner does hereby release said company from liability for leakage of all kinds of liquids, breakage of all kinds of marble, glass, carboys of acid, or articles packed in glass, stoves and stove furniture, castings, machinery, carriages, furniture, musical instruments of all kinds, packages of eggs, or for loss or damage on hay, hemp, cotton Or any article the bulk of which renders it necessary to be shipped in open cars; or for damage to perishable property of all kinds occasioned by delays from any cause, or change of weather, or for damage or loss by fire while in the company’s depots, and the acceptance o'f this receipt by the shipper constitutes the agreement for the transportation of the above-described goods or property.

T. O. CHASE,

Agent"

This bill of lading, were it the only evidence of a contract between the parties would not, by any means, be conclusive upon the point made by the defendant’s counsel. ' The body of the instrument, it is true, says that the defendant agreed to forward the property from Avoca, N. Y., to Buffalo, N. Y. But the heading of the instrm ment shows clearly that this car of potatoes was to be taken from Avoca, N. Y., to Elkhart, Ind. The bill of lading does not contain any restrictions of liability against any contract which the defendant may have "entered into in respect to transporting the property to its •ultimate destination. Ve are of the opinion, therefore, that, notwithstanding the acceptance of this paper, it was competent for the plaintiff to show what the real contract was under which the defendant undertook the care of the plaintiff’s property. The testimony leaves but one solution of this question open to us. It is, in its nature, quite conclusively shown by the testimony of the plaintiff that the contract was with this defendant, by its proper agent, for the sum of twenty cents per hundred, to take the plaintiff’s potatoes in a car which should be furnished .by the defendant, and that the defendant should transport the same to Elkhart, Ind. Indeed, the evidence shows that the plaintiff, with the acquiescence of the defendant’s agent, fitted up the car specially for this purpose by placing a floor therein, and erecting suitable bins to separate the different kinds of potatoes, one from the other. That it was competent for the parties to make this contract, and that the same, if made under the circumstances stated, was binding upon the defendant, admits of no intelligent doubt under the well-adjudged cases. (Riley v. N. Y., L. E. and W. R. R. Co., 34 Hun, 97; Jennings v. G. T. R. Co., 127 N. Y., 449.)

Some other questions are raised by the counsel for appellant, but, inasmuch as they do not appear to have been presented to the trial court, they can hardly be regarded as properly before the court on appeal. These mainly relate to the measure of damages. If it was intended by the defendant’s counsel to contend that the liability was less than the amount of the draft accompanying the way-bill, the point, we think, should have been presented at the circuit, and not raised here for the first time.

Judgment and order appealed from should be affirmed.

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

Judgment and order appealed from affirmed.


author: Macombee, J.:

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    MICHELE CASUCCI, Appellant, v. THE ALLEGANY AND KINZUA RAILROAD COMPANY, Respondent.

      Attorney’s lien — action continued to enforce it after a compromise by Ms client — the attorney must establish the defendant’s liability — Oode of Oútil Procedure, sec. 66.
    Michele Casucci, who brought an action against a railroad company, alleging that he had sustained injuries by reason of its negligence, made a bargain with his attorney by which the latter was to receive one-third of any recovery, or one-third of any amount paid by the company, in compromise of the claim. After-issue joined Casucci settled for $250, no notice of his lien having been given by the attorney to the railroad company, This settlement the court on motion set aside so far as to permit the attorney to prosecute the action to recover the amount of his lien.
    Upon the trial the attorney assumed the position that, without going into the question of negligence, he could by proving the settlement recover one-third of its amount, although the company had, in its answer, denied every material allegation of the complaint, except that at the time stated therein its cars were derailed.
    On appeal by the attorney from a judgment of nonsuit:

      JBeld, that the nonsuit was properly granted.
    That if the position taken by the attorney were upheld, the effect would be that no corporation could settle with an injured person without being held to have admitted conclusively its legal liability.
    That the plaintiff must recover, if at all, upon evidence showing a legal liability of the corporation to pay him growing out of the facts stated in the complaint.
    Appeal by the plaintiff Michele Casucci from a judgment of the Supreme Court, entered in the office of the clerk of the county of Erie on the 13th day of February, 1892, dismissing the complaint, with costs, after a trial at the Erie Circuit before the court and a jury.

      Henry H. Seymour, for the appellant.

      Charles S. Ccvry, for the respondent.
   Macombee, J.:

This action was brought to recover for personal injuries sustained by the plaintiff by reason of the negligence of the defendant in operating its train of cars on the 29th day of November, 1890.

After issue was joined, a settlement ivas effected between the plaintiff and defendant by which the plaintiff released all claim for damages on the payment, by the defendant, of the sum of $250. It appears, however, that the plaintiffs attorney had a contract with his client by which, as a part of the compensation for his services, he was to receive one-third of the amount of the recovery, or one-third of any amount for which the defendant should settle the action. No notice of this lien appears to have been given by the plaintiffs attorney to the defendant, and probably under section 66 of the Code of Civil Procedure no such notice was necessary.

The settlement above mentioned was, upon motion of the plaintiffs attorney, made in his own behalf, so far set aside as to permit the prosecution of the action, and to enable the attorney to recover the amount of his lien as compensation for professional services.

Upon the trial the learned counsel for the appellant assumed the position that by showing a settlement between the plaintiff and the defendant for the sum of $250, he, the attorney, had a right to recover in this action in the name of the plaintiff, but, for the benefit of the attorney, one-third of that amount, without entering upon the merits of the questions presented by the pleadings, which put in issue every question raised by the plaintiff, save only that the cars of the defendant at the time stated were, in fact, derailed. The assertion that the plaintiff himself was a passenger on that occasion was denied; the facts of his injuries were denied, and the affirmative defense that whatever injuries he received were caused by his own carelessness was inserted in the answer.

So far as we are aware, this contention made by the learned counsel in his own behalf presents such a case as has not been passed upon by the courts of this State. The case of Keeler v. Keeler (51 Hun, 506) cited by him, falls far short of holding any such rule to exist. "We are unable to hold, under this section of the Code, that in case of a settlement by a defendant with the plaintiff in a negligence case, the plaintiff’s lien may be thus easily worked out. Such, we think, could not have been the view of the counsel when he made the motion at Special Term to set aside the settlement as being made-in violation of his lien, when he was permitted by the order of the court, procured on such motion, so far to open such settlement as to permit, him to - prosecute the case for the recovery of his lien. To hold otherwise would be tantamount to deciding that the defendant in such an action could not safely compromise ■or settle a claim for personal injuries caused through its alleged negligence without being conclusively held to have admitted its-legal liability. But compromises and settlements of actions never proceed upon any such hypothesis. Common experience shows that parties may often deem it for their best interests, without acknowledging liability, tcj pay something rather than to litigate a contested claim.

In any view that we may regard this case, we think that the trial judge was correct in nonsuiting the plaintiff upon the trial, in the absence of any evidence charging the defendant with liability for the injuries sustained by the plaintiff.

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

Judgment appealed from affirmed.


author: Maoombeb, J.:

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    ROXANNA J. SLEEPER, Respondent, v. SIDNEY S. SLEEPER, Appellant.

      Divorce — sepa/i'ation upon the ground of cruel treatment — what is a proper allowance-to be made by a husband for his wife— Gode of Givil Procedure, secs. 1762, 1766.
    In an action brought by a wife against her husband to secure a separation upon the ground of cruel treatment, it appeared that the wife was fifty-five and the husband fifty-six years of age; that they had no children, and that his property amounted to $4,500. The court, by its judgment, directed the husband to pay the wife for her support and maintenance $1,500 in three equal annual payments.

      Held, that the allowance was excessive.
    That a suitable provision would have been that he pay her fifteen dollars a month during their joint lives only.
    Appeal by tbe defendant Sidney S. Sleeper from a judgment of the Supreme Court, entered in the office of the clerk of the county of Erie on the 16th day of April, 1890, granting to the plaintiff a. judgment of separation and an allowance of $1,500 for her support,, payable in three equal annual payments, after a trial at the Erie Circuit before the court.

      Adelbert Moot, for the appellant.

      W. Thayer, for the respondent.
   Maoombeb, J.:

At the time of the decision entered in this case at Special Term, namely, .the 13th day of April, 1889, the plaintiff was fifty-five and the defendant fifty-six years of age. They had inter-married on the 12th day of October, 1882, and had lived and cohabited together as husband and wife until the year 1884, when, through cruel and inhuman treatment inflicted by the defendant, the plaintiff was compelled to leave her home, and she remained away until the fall of that year, when, through the persuasions of the defendant, she again began and continued to cohabit with him until the 20th day of February, 1888, when, through like ill-treatment, she was obliged to leave his bed and board; and the parties hereto have lived separate and apart since that time.

That the acts complained of by the plaintiff were perpetrated by the defendant, and that she was justified in leaving him, is abundantly established by the evidence. The conclusion of the trial court in that regard cannot, as it seems to us, be successfully disputed on this appeal.

A serious question, however, is raised touching the terms upon which the court has decreed the separation in respect to the provisions made for maintenance and support of the wife. The whole of the property of the defendant, as is shown by the evidence and found by the trial judge, does not exceed in value the sum of four thousand five hundred dollars. The findings and judgment direct that the defendant pay to the plaintiff the sum of $1,500 for her support and maintenance in three equal annual payments, the first to be made within one year from the date of the service of the copy of the judgment; and, until such payment, the defendant was required to furnish to the plaintiff the sum of twenty dollars per month, but such monthly payments, if made, were to apply upon the first installment of $500. This judgment of $ 1,500 is made a lien upon all of the defendant’s real estate.

It appears, therefore, that the decision and judgment have awarded to the plaintiff a money judgment against the defendant in a sum amounting to one-third of the defendant’s entire property.

Section 1762 of the Code of Civil Procedure, following the provisions of the Revised Statutes, authorizes an action for separation in the following cases : (1.) For cruel and inhuman treatment of the plaintiff by tbe defendant. (2.) Where such conduct on the part ■of the defendant towards the plaintiff is such as may render cohabitation unsafe and improper.

Section 1766 authorizes the court to compel the defendant to provide suitably for the education and maintenance of the children of the marriage and for the support of the plaintiff as justice requires, having regard to the circumstances of the respective parties.

The parties to this action have no children, hence it appears that the court has, as it were, partitioned the defendant’s property between him and his wife, giving to the latter one-third of the same. This statute, as we understand it, did not contenrplate such a judgment. The plaintiff was entitled, having established her cause of action, to a sejiarate maintenance and to a reasonable support therein, but, by the very terms of. the act, the judgment should have special regard to the circumstances of the respective parties in ■fixing the amount of such allowance. No case has been cited to us, and we believe that none exists, which would warrant this particular form of judgment. Much latitude is by statute necessarily given to the courts in determining what would be a reasonable support, having proper regard to the circumstances of the parties. No rigid and fixed rule can be safely enunciated in one case which would apply to all others. The cases of Miller v. Miller (6 Johns. Ch., 91), and Burr v. Burr (10 Paige, 37), which have never been overruled, but, on the contrary, have afforded an intelligent basis for many subsequent decisions, are, in principle, at variance with the contention made by the learned counsel for the respondent.

We are of the opinion that in this case, having regard to the circumstances of the parties, a suitable allowance to the plaintiff for her maintenance and support would be the sum of fifteen dollars a month from the time of the entry of the judgment herein, and that such payment should continue no longer than during the joint lives of both parties, and that the plaintiff should have a lien for such payments upon the real estate of the defendant.

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

Judgment appealed from modified as indicated in the opinion, and as modified affirmed, without costs of this appeal to either party.

The judgment to be settled by the justice writing the opinion.


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    MAXIMILIAN J. L. TOWLER and Others, Respondents, v. BLANCHE TOWLER, Appellant.

      Deed — reservation by a grantor of a “ power "to devise o?’ convey a part of the prremises to any future wife — if the “power” is not exercised the prospective beneficiary acquires no rights thereunder.

      A father, who was a widower, conveyed, to his children, as tenants in common, certain premises, reserving a life estate, and further “ the power to devise” one-third of the premises for life to any future wife, or to any person, in trust for her, or (at his option) to deed to her, or to anyone, in trust for her, one-third of the premises for her life. He subsequently married Blanche Towler and died, without having devised or deeded to his wife, who survived him, or to anyone, in trust for her, any interest in the premises.
    In proceedings taken by his children, under section 1688 of the Code of Civil Procedure, to compel a determination of the claim of Blanche Towler to the property, it was
    Meld, that the reservation in regard to his future wife was nothing more than the reservation of a right to grant or devise the premises to her in the manner stated, which right he might or might not exercise at his pleasure.
    That it created no power in trust, nor any trust of which Blanche Towler could compel the execution in equity.
    That the word “power,” as used in the deed, meant no more than right, liberty or privilege.
    Appeal by tbe defendant Blanche Towler from a judgment of tbe Supreme Court, entered, after a trial by tbe court at the Monroe Special Term, in tbe office of tbe. clerk of tbe county of Ontario on tbe 9th day of May, 1892, deciding, that Blanche Towler had no ■estate in the premises described in the complaint, and that the plaintiffs had a present estate in fee in possession therein.
    This was a proceeding taken by tbe children of John Towler, ■deceased, under section 1638 of tbe Code of Civil Procedure, to compel a determination as to the claim of Blanche Towler to certain real property which had been owned by John Towler, the father, and had been conveyed during his lifetime, when a widower, and prior to his marriage to Blanche Towler to his children, by whom this proceeding was taken.

      Arthur P. Bose, for the appellant.

      Chancles A Hawley, for tbe respondents.
   Macomber, J.:

Jolm Towler, the father of the plaintiffs, Maximilian J. L. Towler, Agnes B. B. Morgan and Caroline L. Smith, did, on the 20th day of June; 1881, execute and deliver to these, his children, a deed of certain real estate in the village of Geneva, N. Y., containing the following habendum and reservation clauses :

“ To have and to hold the above-granted premises unto them, the parties of the second part, their heirs and assigns, as tenants in common, and not as joint tenants, subject only to the reservations, hereinafter stated.”

“ Reserving to the party of the first part an estate in said granted premises for and during the term of his natural life, so that the estate hereby granted to the parties of the second part shall only vest in possession upon the death of the party of the first part.”

“And further reserving to the party of the first part the power to devise by last will and testament an undivided one-third part of said premises unto any hereafter taken wife of him, the party of the first part, for and during the term of her natural life, or (at his option) to give and grant by deed to said hereafter taken wife, or to any person in trust for her, the same undivided third part of said premises for and during the term of her natural life, * * * and the said John Towler, the above-granted premises in quiet and peaceable possession of the parties of the second part, their heirs and assigns will warrant and forever defend, subject only to the reservations herein-above expressed.”

After the date and delivery of this deed, and on the 6th day of August, 1881, the grantor, John Towler, intermarried with the defendant, Blanche Towler. He died on the 2d day of April, 1889, without having exercised the'right reserved by him to convey, either by deed or will, to his subsequently taken wife a life estate in onetliird of said premises.

The learned justice, in his decision, has held that the power reserved in this deed to devise or to convey to any after-taken wife, or to some person in trust for such wife, an undivided one-third part of the premises for life, was a special power in trust; and that the execution of such power was imperative upon the decedent, and that the same, if valid, would be enforced in equity. But he further held that such limitation of a life estate might operate to suspend the power of alienation for a period longer than two lives in being at the time of the execution of the deed, and that, consequently, such a life estate to an after-taken wife was void.

An ingenious and subtle argument, covering much of the learning relating to trusts and trust ¡lowers, has been addressed to us by the learned counsel for the appellant, designed to show that this reservation was a power in trust, and that it was also capable of being enforced in equity, and was not obnoxious to the criticism placed upon it by the learned trial justice in his decision and in his opinion.

But, as we view this deed, no complex question of the nature above outlined exists in the case. The deed is plain. The reservation was a mere reservation of a right which the grantor might or might not exercise, at his pleasure, to grant or devise to any wife which he might thereafter take a life estate in one-third of the premises. We are unable to see that the language of this instrument conveys any other thought than a well-expressed intention on the part of the grantor to reserve to himself absolute control over that part of the estate, and that there is nowhere apparent any purpose on his part to obligate himself to carry out any trust power for the benefit of any person. We can see no distinction between this reservation, as expressed in the deed, relating to what he might choose to bestow upon a wife subsequently married by him, and the reservation by the same deed of a life estate in himself with the exclusion of the grantees from a possession of the premises until the grantor’s death. The word power ” used in this deed, manifestly, was not technically used with a view to the provisions of our Revised Statutes relating to uses, trusts and powers. It was, on the contrary,, used in the sense of right, liberty or privilege.

If this be correct, it follows that the judgment appealed from should be affirmed.

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

Judgment appealed from affirmed, with costs.