author: Mayi-iam, J.:

text:
    OSCAR P. KEMP and JOHN KEMP, Appellants, v. ALEXANDER D. PECK, as Survivor, etc., of GEORGE A. PECK, Respondent.

      Account stated — it does not establish the existence of a partnership where it charges several pa/riies with the debt.

    An account stated cannot be used for the double purpose of proving a partnership- and also the amount of the claim.
    If an account is presented to a person, charging him with being liable, with some other persons as his partners, for the amount thereof, the former will not be precluded from denying the existence of the partnership relation, when sued upon the account, by reason of his having retained it without objection, nor will such retention raise a presumption that he is solely liable therefor.
    Appeal by the plaintiffs from a judgment of the Supreme Court,, entered in the office of the clerk of the county of St. Lawrence on the 15th day of August, 1889, in favor of the defendant, upon the report of a referee.
    The action was brought to recover the balance of an account for-goods alleged to have been sold to the defendant and one George A. Peck by the plaintiffs, who were copartners in the hardware business.
    The action was prosecuted against Alexander D. Peck, as survivor of an alleged copartnership of Alexander D. Peck and George A. Peck, George A. Peck having died. The complaint alleges that the plaintiffs-were copartners, and that as such they sold the goods charged in the complaint to George A. Peck and A. D. Peck at their special instance and request, but does not, in terms, allege that they were partners; alleges the death of George A. Peck before the commencement of this action. The defendant denies each and every allegation of the complaint except the death of George A. Peck.
    On the trial the plaintiffs proved various declarations of George A. Peck and Alexander N. Peck, tending to prove that they were partners, which was met by testimony offered by the defendant tending to deny the existence of that relation. The plaintiffs also sought to establish defendant's liability by proof of an account stated, which was also met by evidence tending to deny the same. The referee reported in favor of the defendant, and a judgment was entered upon the report of the referee dismissing the plaintiffs’ complaint, with costs.

      John Lansing, for the appellants.

      V. P. Abbott, for the respondent.
   Mayi-iam, J.:

The referee in this case upon the conflicting evidence as to the existence of a copartnership between Alexander D. Peck and George A. Peck found that they were not at any time during the accruing of the account .on which this action was brought copartners.

There is certainly evidence to support this finding and sufficient, we think, to uphold it. The evidence on this subject may be regarded as somewhat equally balanced. But in such a case the court on appeal will not interfere with the finding of the trial, upon the -well-settled and sound rule that the jury or referee required to pass upon disputed questions of fact, upon a conflict of evidence, having the witnesses before them, are better able to judge between them as to the probable truth of the evidence' than the court on feview,. which sees only the record.

As there is no decided preponderance in the oral evidence and no circumstance to give added weight to the testimony offered by the plaintiffs on this subject, we see no reason for interfering with the referee’s report on that subject. The testimony of Mrs. Peck, relied upon by the plaintiffs, was more a conclusion of the witness than a statement of facts by her, and in it she is expressly contradicted by the evidence of the defendant, Alexander D. Peck, which fairly raises a question of. fact for the referee. He swears that George A. Peck worked his farm on shares; that George A. had no machinery; that he, Alexander, bought the machinery and paid for the same, and explains how George A. Peck’s name came to be used in the mortgage.

But the plaintiffs insist that the defendant is concluded in this action upon an account stated. If this account had been charged to Alexander alone, and stated to him, and he had retained the same without objection for the time indicated by the evidence, he would be deemed to have acquiesced in its correctness as to amount, and it would be presumptively binding upon him. (Avery v. Leach, 9 Hun, 106.) But the referee finds that the letters “A. D.,” the only thing in the account indicating that it was charged against Alexander D., were written over an erasure of the word “ Peck,” a significant fact, which the referee had a right to take into account in determining whether the original account was not in the name of George A. Peck. Nor do ive think that an account stated can be used for the double purpose of proving a partnership, as well as the amount of the claim. All the cases seem to proceed on the theory that if the account is stated between the proper parties to it, and assented to or retained so long that the assent or acquiescence in its correctness may reasonably be inferred, that the party is concluded, in the absence of fraud, from denying its correctness (Lockwood v. Thorne, 11 N. Y., 170); and if either party attempts to impeach the settlement and open the account for re-examination the burden, of proof rests upon him (Towsley v. Denison, 45 Barb., 490); but all this relates to the correctness of the account, and not to the liability of the person in the form in which he is sued. If an account is presented to one person charging him as liable with some other person, as his partner, we do not think that the authorities go to the length that he will not be permitted to deny that relationship when sued upon the account. If, therefore, as in this case, the proof fails to establish a joint liability, the party to whom the account was presented would not, by reason of its retention without objection, be solely liable on it; and if the partnership relation was not established, of course, the firm would not be liable.

The appellants raise several objections upon the evidence and insist that the referee erred in the receipt and rejection thereof on the trial.

We have carefully examined the various.rulings and exceptions upon that subject and find no error committed by the referee in the receipt •or rejection of evidence for which this judgment should be reversed.

The judgment is affirmed, with costs.

Learned, P. J., and Landon, J., concurred.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Learned, P. J.:

license: Public Domain

text:
    JOHN HOOPER, Respondent, v. THE JOHNSTOWN, GLOVERSVILLE AND KINGSBORO HORSE RAILROAD COMPANY, Appellant.

      Horse railroad company — duty of, in respect to gua/rding cm embarilcment upon which its trades are laid.

    Iu an action brought to recover damages resulting from the death by accident of a child twelve years old, alleged to have been occasioned by the wrongful act of the defendant, a horse railroad company, it appeared that at the place where the accident occurred the tracks of the defendant ran alongside of a public highway near to a creek, the earth sloping gradually from the tracks to the edge of an embankment, over -which latter the child appeared to have fallen. This embankment, which was occupied by the defendant with the consent of the owner, did not constitute any part of the public highway, although it was substantially on a level with the highway, and might from appearances be thought to be a part thereof.

      Held, that the defendant was under no obligation to prevent persons from going upon the embankment.
    That unless, by implication, it invited the public to go on this land, or had per. mitted something in the nature of a snare, such as an excavation or a pile of material thereon, it was not bound affirmatively to guard the surroundings so that no one could stray thereon to his injury.
    Appeal by the defendant from a judgment of the Supreme Court, entered in the office of the clerk of the county of Fulton on the 9th day of June, 1890, in favor of the plaintiff, after a trial at the Fulton County Circuit, before the court and a jury, at which a verdict was rendered in favor of the plaintiff for the sum of $950, with notice of an intention to bring up for review on such appeal the refusal of the court to grant the defendant’s motion for a nonsuit, and also an order denying the defendant’s motion to set aside the verdict and for a new trial, which was entered in the office-of the clerk of the county of Fulton on June 6, 1890.

      BaJeer <& Bwrton and Matthew Hale, for the appellant.

      Ba/rnwell Bhett Heyward, for the respondent.
   Learned, P. J.:

This is an appeal by defendant from a judgment on a verdict and from an order denying a new trial. The action was brought by the-administrator of Theresa Hooper, a child about twelve years old, to recover damages for her death, alleged to have been occasioned by the wrongful act of defendant.

The complaint alleged that the defendant in constructing its-track wrongfully took possession of a part of the highway between Johnstown and GMoversville and maintained exclusive control thereof, the part being such as was used by foot passengers, and thus that defendant interfered with the use of the highway and added to the danger of traveling thereon, especially at the point where the deceased came to her death. That the deceased fell over-an embankment maintained by defendant and was drowned.

It appears by the evidence that under an order of the court, in 1879, the defendant was permitted to construct its road along and upon the public highway. And the court charged that the defendant was rightfully in possession. This highway runs at one place-not far from a creek running southward, and there is a point where-a sharp bend in the creek brings it quite near to the highway on the east side. The plank road is built upon the west side of the highway, and the horse railroad in this part of the highway is east of the-plank. Previous to 1881 the defendant’s track was upon the east side of the highway; and there was a beaten foot-path along the east side of the track. At the point in question the land adjacent to the highway belonged to Mr. Place. And this land between the creek and the highway was wet and swampy. The side of the highway sloped down to this swampy land. In that year the defendant, filled in apiece of the land east of the highway, building up a docking with timbers close to the sharp bend of the creek. There had been an old fence at the side of the highway, which was greatly decayed. The remains of this were used in the filling. The filling was from four to six or seven feet; and the widest point forty to fifty feet wide. The defendant then moved its rail eastward in one place some five or six feet, and further along some twenty-five or thirty feet. At the south end of the embankment which is near the tree the space between the east rail and the edge is about eight feet. It widens going north, and fifteen feet north of the tree it is sixteen feet, and it continues to widen beyond that place. This was done in order to straighten the road. Between the track and the perpendicular docking the distance in some places is five or six feet, at the widest about twelve. In doing this work a depression was left between the tracks and the plank-road; and a box drain was put under the tracks to cany off the water from this depression. There is still a beaten track of about two feet wide east of the car tracks, and the earth slopes gradually to the edge of the embankment.

The deceased left her father’s house a little before 1 p. m. to go-to school a quarter of a mile distant. Plaintiffs house and the school-house were west of the highway, so that it was not necessary for her to cross. On the same day, after six o’clock, her body was found in the creek, about eight or ten feet from a tree, which stood at the south end of the embankment. There was found a little fresh track on the bank, about twelve inches by six, some ten feet from a tree north of the tree, or nearly opposite where the body was found, and some foot-prints near by. No one saw her fall in. She was seen about one o’clock going along the foot-path a little north of the place where she probably fell in. She was tossing a ball in the air and catching it, moving towards the school-house. The ball was a solid rubber ball which would not float; and on& witness testified that lie had let her take it that day after dinner, and before she reached the place of the supposed accident that she tossed it up in the air and that he had never had it since.

The defendant insisted that the filling in and docking were outside of the line of the highway, and were on private property, where defendant had gone by consent of the owner. That, there•fore, the defendant was under no liability to construct any barrier; •and, further, that it was not shown that the deceased was not guilty ■of any contributory negligence.

The court held that if the present track of the defendant was •outside of the highway, defendant owed no duty to the deceased, unless it should be found that defendant practically invited the public to use the place as a part of the highway, to which the defendant excepted.

If the defendant, after laying its track for some distance upon the highway, had then diverged therefrom, and had not returned thereto, but had constructed an embankment of its own upon private property, it would hardly be claimed that defendant would have been under .any obligation to erect a fence on such an embankment to prevent foot passengers from falling off. Even if defendant had not prevented foot passengers from walking along such supposed embankment, it would • not have been bound to protect them. But they would go there at their own risk. The decision in Cusick v Adams (115 N. Y., 55), would decide this; and in the case supposed, even if the embankment thus erected for its own use by the defendant should have the appearance of a highway branching off from the real highway, yet we do not see that this would make the defendant bound to protect a foot passenger from falling off. In the Cusick Case it was said that the question was not one of appearance, nor of what the plaintiff supposed, but of what was the defendant’s duty.

If, again, this defendant, without going at all upon the highway, had built alongside of the highway an embankment on which it had laid its. track, and if the outer-side of such embankment were perpendicular at some place, we cannot see that the defendant would have been bound to protect the place so that foot passengers could •not fall off. We suppose that railroad companies owe to persons who walk along the side of the track no obligation to guard them against falling off an embankment.

The present case differs from those which we have above supposed simply in this, that in the present case the defendant, for much of its distance, laid its track on the highway, and that at the place where the accident occurred, although the defendant’s track was not •on the highway, yet the embankment was substantially on a level with the highway, and it might be thought to be a part thereof. But it is to be observed, in this connection, that there was a depression between the track and the plank-road, which, in some degree, separated one from the other. Even aside from that circumstance,, we do not see what obligation the defendant was under to a person going upon this land. It was not a part of the highway. It was occupied by defendant by the consent of the owner. The defendant was not bound to prevent persons from coming upon its land.. It did not invite them.

The case of Beck v. Carter (68 N. Y., 283), cited by the plaintiff, illustrates the doctrine applicable here; and in the opinion several cases are given showing the ground of liability, when any existed. Thus it is said that, in the absence of special circumstances, if one person traveling on the highway deviates therefrom and falls into a. pit or excavation on the adjoining land, the owner is not responsible for the resulting injury. But if the excavation is adjacent to the highway, or so near thereto as to make the use of the highway dangerous, the person making it will be answerable to a traveler, who, while using ordinary care, falls into it and is injured. In Beck v. Carter the land had, by use long continued, been made for the time being a public place and part of the highway, and defendant made an excavation therein. The court said, where the owner of land expressly, or by implication, invites a person to come on his land, he cannot permit anything in the nature of a snare to exist thereon. If he gives but a bare license, the licensee takes the risk.

Now, if we compare the present case with that, or with the cases there cited, we shall see that, where the owner has been held liable, he has, at least by implication, invited the public to come on his land, or he has permitted something in the nature of a snare, such as an excavation or a pile of material into or upon which the injured person has ignorantly gone. But nothing of that kind exists here. There was no unseen snare; no excavation; no pile of material. The public were not invited to- walk over the premises. But if they did walk there was nothing to obstruct them. No dangerous place existed in the path were they were accustomed to go. If the defendant had piled up railroad ties or other materials upon the foot-path already described, and some person walking there at night had fallen upon such ties or material, then there would have been a case somewhat similiar to that of Beck v. Carter.

The defendant was not under the obligation which might rest on the commissioner of highways or the owner of a turnpike road, to provide suitable fences at dangerous places. Though we need not decide whether even they wciuld be liable to a foot passenger, under ■circumstances like those of the present case. But, certainly, we are unable to say that the defendant was guilty of negligence. For while the defendant was perhaps not at liberty to put any dangerous obstruction in the foot-path which had been used, without taking ■some precaution to warn travelers of the same, we do not see that it was bound affirmatively to guard the surroundings of that footpath so that no one could stray therefrom to his injury.

Nor does it seem to us that the plaintiff showed that the deceased •came to her death without negligence on her part. There is no evidence showing what caused her to fall into the water. If she was walking in the path she could not have fallen off the embankment. Whether she carelessly ran to the edge in pursuit of her ball; whether she was pushed in by some unknown person; whether she was frightened and thus ran to the edge and fell in, all these are matters entirely unknown. The accident happened in the daytime and she could not have wandered unknowingly from the path. We may conjecture that her ball rolled to the edge and off, and that she followed it heedlessly. But this is conjecture. She was eleven years old and familiar with the way to school, where she had been five or six years. She was, therefore, capable of exercising some ■care and prudence. It seems to us that the decision in Reynolds v. New York Cental and Hudson River Railroad Company (58 N. Y., 248), and in Wendell v. New York Central and Hudson River Railroad Company (91 id., 120), and the remarks of the court in Bond v. Smith (113 id., 385) apply forcibly to this case, and that the plaintiff failed to show that the deceased was free from ■contributory negligence.

The judgment and order should be reversed and a new trial ■granted, costs to abide event.

Landon and Mayham, JJ., concurred.

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


text:
    MILTON F. ADAMS, Respondent, v. THE LAMSON CONSOLIDATED STORE-SERVICE COMPANY, Appellant.

      Allegation in a complaint that the defendant is a corporation, constipates no part of the cause of action — its absence is not a ground of demurrer.

    An allegation in a complaint that the defendant is a corporation constitutes no part of the cause of action, but simply relates to the character or capacity of the defendant, and, therefore, a complaint, which does not allege that the defendant is a corporation, although such might be inferred to be the fact from its name, is not demurrable on the ground that it does not state facts constituting a cause of action.
    Appeal by tbe defendant from an interlocutory judgment of tbe Supreme Court, entered in the office of the clerk of the county of Albany on the 20th day of June, 1890, pursuant to an order of said court, made and entered in said clerk’s office on the 14th day of June, 1890, overruling a demurrer interposed by the defendant to the plaintiff’s complaint, with leave to the defendant, within twenty days of the service of a copy of the interlocutory judgment and upon payment of costs, to answer the plaintiff’s complaint.

      George F. Cornfield, for the appellant.

      Norton Chase, for the respondent.
   Learned, P. J.:

This is an appeal from an interlocutory judgment overruling a demurrer to plaintiff’s complaint. The action is brought to recover. damages for false imprisonment of the plaintiff caused by defendant in the State of Massachusetts. The complaint contains no distinct averment that the defendant is a corporation, nor does it contain any averment as to plaintiff’s present residence.

The grounds of demurrer are stated to be, first, that the complaint does not state facts sufficient to constitute a cause of action; second, that it does not state facts sufficient to show that the court has jurisdiction of the defendant or of the subject of the action.

The demurrer is based on section 1775 of the Code, which states what must be averred in the complaint in an action by or against a corporation. But the difficulty is that the defendant requires us to assume that it is a corporation. Now, although we may naturally suppose from the name of the defendant that it probably is a corzporation, still there is no allegation to that effect in the complaint. The defendant may be a partnership or a joint-stock association. True, if that were the case the plaintiff’s action might have been improperly brought. But that is not the question here. All we have to decide is whether the complaint is demurrable.

In Fox v. The Erie Preserving Company (93 N. Y., 54), an action had been commenced in Justice’s Court, and in the complaint in that court there was no allegation that defendant was a corporation. The cause was removed to the Supreme Court after plea of title. And in the complaint in that court an allegation was inserted that defendant was a corporation. A motion was made to strike this allegation out under section 2957. The Court of Appeals held it ought not to be stricken out, saying: “ The allegation that the defendant is a corporation is no part of the cause of action, but simply relates to the character or capacity of the defendant ” If this be correct, the demurrer could not be sustained in this present, case on the ground that the complaint does not state facts sufficient to constitute a cause of action. For if the allegation that the defendant is a corporation is no part of the cause of action, then the absence of that allegation cannot be ground of a demurrer for insufficiency. In harmony with this is a dictum in American Baptist Home Mission Society, et al. v. Foote (52 Hun, 307), and the decision in Irving National Bank v. Corbett (10 Abb. N. C., 85). In Hafner & Schoen Furniture Company v. Grumme (10 Civ. Pro., 176), the complaint alleged that plaintiff was a corporation, but did not allege whether it was foreign or domestic. The court held the complaint good on demurrer; referring to the rule as being the same under the former Code. (Phœnix Bank v. Donnell, 40 N. Y., 410; see, also, Rothchild et al. v. Grand Trunk Railway Company of Canada, 30 N. Y. St. Rep., 642; 10 N. Y. Supp., 36.)

We have not overlooked the decisions cited by the defendant holding a different rule. It is not necessary to cite or comment on them. As to the point of the demurrer, that the court has not jurisdiction of the subject, or of the person of the defendant, we do not see that this appears by the complaint. Facts may, perhaps, appear on the trial which will show a want of jurisdiction. We understand that the defendant relies on section 1780 of the Code.

It may be, also, that the defendant under section 516 may require the complaint to state the corporate existence of defendant (if defendant be a corporation), more fully. We have, however, only to pass un the question of the demurrer.

The judgment must be affirmed, with costs, with leave to defendant, in twenty days after notice of judgment on payment of costs below and of this court, to withdraw demurrer and answer over.

Landon and Mayham, JJ., concurred.

Judgment affirmed, with costs, with leave to defendant, in twenty days after notice of judgment, on payment of costs below and of this court, to withdraw demurrer and to answer over.


author: Landon, J.: Mayham, J.

text:
    HARRIET E. JOSLYN, as Administratrix, etc., Appellant, v. PETER H. PULVER and Others, Respondents.

      Comptroller’s tax sale — the deed, under chapter 448 of 1885, is not conclusive evidence of title in a ease in which the tax has been paid — word “paid" written on

    In an action brought to recover for the cutting of trees upon land which had been, sold for the alleged non-payment of taxes by the comptroller of the State of New York, evidence was given by the defendants tending to show that the taxes, upon the land in question were paid before the return thereof was made to the comptroller, under whose deed the plaintiff claimed to be entitled to recover in the action.
    Upon the trial the plaintiffs counsel asked the court to instruct the jury that the comptroller’s deed, having been on record in the clerk’s office of the county in. which the lands were situated over ten years, was, under chapter 448 of the Laws of 1885, conclusive evidence that the assessment was regularly made and levied, and that the sale was regularly made, which request to charge the court qualified by stating that the deed was not conclusive evidence that the taxes were not paid or were not improperly levied.

      Held, that the qualificationmade by the court was proper. (Mayham, J., dissenting.)
    That while the legislature might, by statute, cure omissions and irregularities in the proceedings relating to the assessment and levying of taxes where it might have originally dispensed with such proceedings, yet the fact of non-payment of the taxes was a jurisdictional fact, and not a mere irregularity; that the legislature could in no case authorize the comptroller to sell lands for the nonpayment of taxes, except upon actual non-payment; nor could the legislature make valid a sale of lands for the non-payment of taxes where such taxes had, in fact, been paid.
    That the six months’ limitation prescribed by the act of 1885 did not constitute a bar to the right of the defendant to interpose a defense of payment of the taxes; nor could the State require an owner to disprove an ex parte statement of its officer within a definite period of time, whether he had notice or not of such declaration, or else to surrender his estate. (Mayham, J., dissenting.)
    That the proper office of a- statute of limitations is to put an end to claims which are not asserted within a reasonable time, but not to put an end to defenses to such claims.
    'The entry of the word “paid” in the handwriting of a deceased collector of taxes, upon the line upon an assessment-roll on which an assessment and tax in question are entered, is competent evidence of payment of the tax when it is shown that it was the custom of the collector to make such an entry upon the receipt of payment of the tax.
    Appeal by tbe plaintiff from a judgment of tbe Supreme Court, entered in tbe office of tbe clerk of tbe county of Warren on tbe 23d day of April, 1889, witli notice of an intention to bring up for review upon sucli appeal tbe order allowing the defendants to amend their answer on tbe trial, and also an order granting tbe defendants an allowanee of $750 as an extra allowance of cost; also an appeal from an order denying tbe plaintiff’s motion for & new trial, made upon tbe minutes of tbe court and entered in tbe Warren county clerk’s office on May 18, 1889, after a trial before tbe court and a jury at tbe Warren County Circuit on April 15, 1889, at which a verdict was rendered for the defendants.
    Tbe action was for trespass in wrongfully entering upon lands of plaintiff’s grantor and assignor, and cutting and converting wood and timber, and for tbe recovery of treble damage, under tbe provisions of section 1668 of tbe Code of Civil Procedure.
    Tbe complaint alleged that tbe defendants were copartners in tbe lumbering business, and, that, without leave, they entered upon a tract of wild land belonging to Elizabeth Miller and Elizabeth F. Smith, and wrongfully and unlawfully cut and carried away a large quantity of timber and trees, standing and growing thereon; and cut said timber and trees into logs, and girdled and stripped and pealed the park from tbe hemlock trees and logs; and wrongfully and unlawfully took and carried off from such land and premises sucli bark and logs without tbe consent of tbe owners, to their damage of $5,000; and claimed judgment, under the provisions of sections 1667 and 1668 of the Code of Civil Procedure, for $15,000.

      The answer denied all the allegations of the complaint, except as therein expressly stated, admitted or qualified, and on information and belief denied the copartnership, and denied any information sufficient to form a belief as to whether Miller and Smith were joint owners, as alleged; also as to whether they conveyed the premises described-in the complaint to the plaintiff, and also sold him the claim for damage as therein alleged.
    The chief controversy on that trial was, whether the lands on which the timber and bark was concededly cut, and from which the defendants had taken them, or caused them to be taken, were the lands of the plaintiff as described in the complaint.
    The parties respectively introduced the conveyances under which they claimed title to the premises where the timber was cut, and there is much conflicting and unsatisfactory oral evidence bearing upon the question of location.

      James G. Rogers, for the appellant.

      H. A. Howard and J. 8. RAmoreaux for the respondents.
   Landon, J.:

The plaintiff’s right to recover for the trees cut and carried away 'by the defendants depended upon the question whether the intestate had established title to the lands upon which the trees stood. That title depended upon the validity and effect of two deeds from the comptroller of the State to Gerrit Smith, the first executed in 1856, the second in 1869, the first recorded in the Warren county clerk’s ■office in 1859, and the second in 1869, both purporting to be made because of the non-payment of taxes assessed upon the lands described therein, which description embraced the locus in quo. The taxes, upon the non-payment of which the lands were sold by the comptroller, were assessed as upon non-resident lands. The defendants claim title under the comptroller’s deed of 1834, and gave evidence tending to show that at the time the taxes were assessed under which the deeds to Gerrit Smith were given, the lands were occupied under the defendants’ grantor.

The learned trial judge submitted the question to the jury, upon the evidence, whether, at the time the assessment was made and levied under which the deeds to the plaintiff’s grantor were given, the lands were actually occupied by a Mr. Ralph under Abel French, the defendants’ grantor.

Evidence was given by defendants tending to show that the taxes upon the lands in question were paid before the return was made to the comptroller, under whose deeds the plaintiff claims. The trial judge submitted the question of fact to the jury whether such taxes were actually paid.

The trial judge held and instructed the jury that if the lands were occupied under the owner at the time they were assessed and taxed as non-resident lands, that the taxes were void, and the deeds based thereon also void. And that if the taxes had actually been paid before return of this non-payment was made to the comptroller,, his subsequent deeds of the lands were void. The jury found for the defendants.

The plaintiff’s counsel asked the court to instruct the jury that the comptroller’s deeds to G-errit Smith, under whom plaintiff derived title, having been on record in the clerk’s office of the county in which the lands are situate over ten years, are, under chapter 448, Laws of 1885, conclusive evidence that the assessment was regularly made and levied, and that the sale was regularly made. The court: “ I will so charge of the regularity of the sale, but not conclusive that the taxes were not paid, or were not improperly levied.” The plaintiff excepted to the refusal. The court also held that the-act in question is not intended to cure jurisdictional defects, but only relates to matters of the form of the proceedings.

We think the rulings of the trial court were right. The plaintiff contended that, by virtue of chapter 448, Laws of 1885, the comptroller’s deeds, under which the plaintiff claims, were validated and made unimpeachable either by proof that the lands were occupied, or that the taxes had, in fact, been paid. The act provides that: “All such conveyances that have been heretofore executed by the comptroller, and all conveyances of the same lands by his grantee or grantees therein named, after having been recorded for two-years in the office of the clerk of the county in which the lands conveyed thereby are located, and all outstanding certificates of a tax sale heretofore held by the comptroller that shall have remained in force for two years after the last day allowed by law to redeem from such sale shall, six months after this act takes effect, be con-■elusive evidence that the sale and all proceedings prior thereto, from and including the assessment of the land, and all notices required by law to be given previous to -the expiration of the two years allowed by law to redeem, were regular and were regularly given, published and served according to the provisions of this act.” This act and the act of 1855, of which it is an amendment, are acts “ in relation to the collection of taxes on lands of non-residents, and to provide for the sale of such lands for unpaid taxes.” Occupied lands are not the lands of non-residents. (1 R. S., m. p. 389, § 3 ; People ex rel. Barnard v. Wemple, 117 N. Y., 77.) If these lands were occupied at the time the assessment was made and the tax levied, they were not “ lands of non-residents,” and the act in question has no application.

But the jury, under the charge of the court, may have found that the lands were non-resident lands, but that the tax was paid. As the comptroller’s deed recites the jurisdictional fact of the non-payment of the tax, if that recital is conclusive evidence of it, any common-law evidence that it had been paid was erroneously received, and the verdict based upon such evidence cannot be upheld. It is .held that the legislature may by statute cure omissions and irregularities in such proceedings in the assessment and levying of taxes as it might have originally dispensed with. (Ensign v. Barse, 107 N. Y., 329.) It is also held that the provision in chapter 448, Laws of' 1885, that the comptroller’s deed “After having been recorded for two years * * * shall, six months after this act takes effect, be conclusive evidence that the sale and all proceedings prior thereto * * * were regular,” gave to the taxpayer six months in which to question the regularity of the proceeding, and was thus a limitation upon' his rights in that respect, and barred him from subsequently objecting upon the ground of mere irregularities. (People v. Turner, 117 N. Y., 227.)

But the fact of non-payment is a jurisdictional fact, and not a mere irregularity in the proceedings. Unless there is default in payment of the tax the comptroller has no jurisdiction to sell the lands. A.s the legislature could in no case authorize the comptroller to sell lands for non-payment of taxes except upon actual non-payment, so after a sale by him of lands as upon non-payment when in fact there had been payment, the legislature, within the cases cited, could not ratify or validate such a sale. For what the legislature could not originally authorize it could not subsequently ratify and validate. If, by any refinement of s tatutory limitations or rules of evidence, the State can ultimately confiscate the property of an individual in a case where it never had jurisdiction to proceed at all, the constitutional guaranty of due process of law would yield to-legislative despotism. As said in Howard v. Moot (61 N. Y., 268), and repeated in People v. Turner (117 id., 235): “ A law that should make evidence conclusive, which was not so necessarily in and of itself, and thus conclude the adverse party from showing the truth, would be void, as indirectly working a confiscation of property or a destruction of vested rights.”

But the act of 1885 further provides: “ But all such conveyances and certificates, and the taxes and tax sales on which they are based, shall be subject to cancellation, as now provided by law, on a direct application to the comptroller, or an action brought before a competent court therefor, by reason of the legal payment of such taxes.” It is claimed that the defendants had six months in which to apply to the comptroller or the court for relief against the comptroller’s deed “by reason of the legal payment of such taxes,” and having failed to do so the statute of limitations bars their right to rely upon such a defense, and the comptroller’s deed is conclusive evidence that the taxes had not been paid. "What has already been said answers these positions. We cannot suppose that the State has power to spoliate the citizen by commanding that its own ex parte declaration of an untruth must be disproved by the victim of it within a short day, whether he has notice or not, or else he must surrender his estate. Estoppel sometimes promotes justice by suppressing the truth, but always at the expense of him who told the untruth. Clearly if the State has made a mistake in asserting a jurisdictional fact to the prejudice of the citizen, it cannot, without subverting due procsss of law, deprive him of the right to show the truth whenever and wherever any attempt to deprive him of his property is based upon the untruth. The recital of a jurisdictional fact in a judgment is only prima facie evidence of it. (Ferguson v. Crawford, 70 N. Y., 253.)

The individual who pays his tax has the right to rely upon complete exemption from any proceedings against his land as for non-payment. If the collector and county treasurer make false-returns, the individual is put upon no inquiry respecting them. It is time enough for him to act when he has notice that action is necessary. In the present case it does not appear that the defendants had any such notice except by the commencement of this action.

The proper office of a statuté of limitations is to put an end to claims which are not asserted within a reasonable time, not to put-an end to defenses to such claims. Time is one of the munimentsof the possessor’s title and the destroyer of the non-possessor’s claim. We do not think the rule should be reversed so as to make-the claim stronger as it becomes staler. Limitation laws cannot compel a resort to legal proceedings by one who is already in the complete enjoyment of all he claims. (Cooley’s Const. Lim., m. p. 366.) Here deeds which for more than twenty years were not worth asserting are claimed to be resurrected and validated by statute. But a legislative fiat cannot transfer A’s property to B under the guise of confirming invalid tax sales. (Cromwell v. MacLean, 34 N. Y. St. Rep., 85.) The statutes conferring authority upon the comptroller to cancel tax sales are for the protection of the purchaser, not of the taxpayer. (The People ex rel. Wright v. Chapin, 104 N. Y., 369.)

Objection was taken to the admission' of a copy of the copy of the assessment-roll filed in the town clerk’s office of the town of Lucerne for the year 1856. Evidence was given tending to show that the roll for that year filed in the county treasurer’s office had been destroyed by fire, and that the copy thereof filed in the town clerk’s office had been lost. • Such being the case the verified copy of the copy in the town clerk’s office was the best .evidence which the nature of the case admitted. The plaintiff cites People ex rel. Wright v. Chapin (38 Hun, 272). That case did not hold that in no case could the copy in the town clerk’s office be used, but held that if it varied from the original roll in the county treasurer’s office, or from the return made to the comptroller from the original roll, the original roll, and in case of its loss, the return, should prevail. Here no return from the original roll was produced from the comptroller’s office.

Objection is taken to the admissibility of some of the evidence tending to show payment. The assessment-roll for the year 1860 was produced, the collector was shown to be dead. Upon the line upon which the assessment and tax were entered the word “ paid,” in the deceased collector’s handwriting, was entered. Evidence tending to show that it was his custom to make such an entry upon receipt of payment was given. We think the entry was admissible. (Livingston v. Arnoux, 56 N. Y., 507; Leland v. Cameron, 31 id., 115.) Another assessment-roll for the year 1858 was produced in which was written the word paid ” upon the line upon which the assessment and tax were entered. The collector testified that he made the entry; that' he made no such entry, except upon payment of the tax, but that lie had no recollection of the transaction. This entry also was admissible. (National Ulster County Bank v. Madden, 114 N. Y., 280.)

Objection is also taken to the sufficiency of the evidence to show that the lands were occupied at the time of the assessment and tax. We think the evidence sufficient to justify the presentation of the ■case to the jury. (Smith v. Sanger, 4 N. Y., 577.)

The judgment should be affirmed, with costs.

Learned, P. J., concurred.

Mayham, J.

(dissenting):

The first three points made by the appellant for the reversal of this judgment relate to the alleged insufficiency of the answer and alleged error in allowing the defendants to amend the same on the trial.

We think the answer was sufficient to put the allegation of the plaintiff’s complaint in issue. Assuming that the defendant’s denial ■of “ each and every allegation in the plaintiff’s complaint contained, except as hereinafter expressly admitted, stated or qualified,” is neither a general or specific denial, and not such a denial as is provided for in the Code (People v. Snyder, 41 N. Y., 400; McEncroe v. Decker, 58 How., 250), and the denial upon information and belief of the copartnership alleged in the complaint, is not the form ■of denial authorized by section 500 of the Code of Civil Procedure, yet as no motion was made to strike out these defective allegations in the answer, or for judgment on that account, and as the second, third and fourth subdivisions of the answer denies any knowledge ■or information sufficient to form a belief, and each concludes with .an express denial of the matters which it purports to answer, the whole answer taken together must be held sufficient to put in issue the allegations of the complaint.

Nor do we think the allowance of an amendment of the answer on the trial error. Section 723 of the Code of Civil Procedure authorizes the court at the trial to allow an amendment of pleadings in the ■exercise of a sound discretion where justice will thereby be promoted (Rosenwald v. Hamerstein, 12 Daly, 377) ; and as the plaintiff in this case made no proof that she was misled to her prejudice by the amendment, it must be assumed that the discretion was properly exercised. (Code of Civ. Pro., § 539.)

The plaintiff claims title to the locus in quo under two deeds from the comptroller of the State of New York to Gerrit Smith, alleged to have been given on tax sales, one dated the 6th day of March, 1856, and purporting to convey 208 acres, conveyed by the following description : “Also two hundred and eight (208) acres to belaid out as aforesaid, being the south part of subdivision No. four ■of lot No. five (5) in the twenty-fifth allotment of the Kayaderosseras Patent.”

The other deed bears date the 13th of January, 1869, and purports to convey 150 acres described in the deed as follows : “ One liun dred and fifteen acres, being the north part, seventy-five acres, and west part, forty acres, subdivision No. four (4), lot No. (5), twenty-fifth allotment, Kayaderosseras Patent.”

Gerrit Smith, by his will, devised the lands described in these conveyances in and by the residuary clause of the same, one-half to his wife, and one-quarter to his son, Green Smith, and one-quarter to his daughter, Elizabeth L. Miller, each taking an undivided interest as above set forth; Green Smith, in and by the fifth or residuary clause in his will, devised and bequeathed all the rest, residue and remainder of his estate to his wife, Elizabeth E. Smith.

Elizabeth S. Miller and Elizabeth E. Smith, by quit-claim deed, dated the 24th of July, 1886, conveyed to Ai Joslyn the land described therein, as follows: “All that tract, parcel or piece of land situate in the county of Warren, and State of New York, being forty acres in west j^art, seventy-five acres in north pai't, and two hundred and •eight acres in south pai’t of subdivision No. 4 of lot No. 5 in 25th allotment of Kayaderosseras Patent; also the right to collect damages for past trespass.”

The grantors in the last-mentioned deed also conveyed by quitclaim to the grantee therein, on the 22d of July, 1886, another piece of land described as follows: “ All that tract, piece or parcel of land, situate in the county of Warren, and State of New York, being the south half of 250 acres in subdivision 3 (now known as sub. 2 — the McOmber lot), lot 6, 25th allotment, Kayaderosseras. Patent. All right to collect damages for past trespass on the above-described land is hereby conveyed.”

The plaintiff also put in evidence a warranty deed from Charles. Newcomb and wife, to Calvin Joslyn, purporting to convey the “ equal undivided one-third part of all that certain tract, piece or parcel of land situate, lying and being in the town of Luzerne, and is a part of subdivision No. é in Great Lot No. 5, in the 25th Great-Allotment of the Kayaderosseras Patent.” The ^lot^ is further described in-this deed by metes and bounds, and as the same lot described in a deed dated December 9, 1865, given by Charles. Newcomb and wife to Abner Wright, Jr.

The plaintiff also put in evidence map of the allotment, with particular description of lots Nos. J, 5 and 6 in that allotment. The plaintiff also put in evidence a certificate of sale by the sheriff' of Warren county, on an execution against Aaron G. Murray, Jr.,, and John Cameron to Ai Joslyn of all the right, title and interest of Aaron G. Murray and John A. Cameron, or either of them, on the 19th day of May, 18YY, of, in and to the real estate described as follows: “The equal undivided one-third part of that piece or parcel of land described as follows: ” Here follows a description, of the land sold, described as 150 acres, “ being the same premises, conveyed to John A. Cameron by Aaron G. Murray, Jr., and wife, by deed November 9th, 1869.”

The defendant claims title through a deed from Abel French,, dated October 1,1880, who claimed to derive his title from Solomon W. Russell and wife, dated April 26, 183Y, who claimed title under two deeds, one from the comptroller of the State, dated 11th day of February, 1834:, and a quit-claim deed from Peter Smith, dated the 9th of November, 1833. Neither of these deeds seem to have been recorded.

The learned judge at the trial held that the plaintiff, by his evidence, had made out aprima faaie title to all of subdivision 4 and great lot 5 of the twenty-fifth allotment of the KayaderosserasPatent, on which the alleged trespass was committed, but that prima facie title was attacked by the evidence of the defendant tending to show that the tax sales -to Gerrit Smith, through whom the plaintiff claims title, were defective, and did not convey a valid title as against French, to whose rights the defendant succeeded, under a deed from him.

The plaintiff insists that the tax sale to Smith was conclusive-evidence of Smith’s title, and that it cannot be assailed in this action ; and that it was error to allow evidence of deeds and other papers offered by the defendant tending to show title in defendants and their grantors, or evidence tending to attack the regularity of the comptroller’s deed to Smith, and of the assessments under which the sales were made for which the comptroller’s deeds were executed to Smith, and that the judge’s charge relating to that subject was-erroneous; as we have seen the comptroller’s deeds to Smith were dated, respectively, March 6, 1856, and January 19, 1869, and recorded on the 19th day of March, 1859, and on the 3d of November, 1869, in Warren county clerk’s office.

It does not seem to be disputed that these deeds cover the land on which this timber was cut, but the contention of the defendants, is that the comptroller had no right to sell these lands under the-assessment under which he assumed to advertise and sell the same, and that the purchaser at that sale could get no greater title than the comptroller had a right to sell under the assessment, the seventy acres claimed by French, as. that was no part of the Murray lot, on which the assessment was made.

There is great force in this contention, unless all parties are eon-eluded by the comptroller’s deed from attacking conveyances under it.

By the provisions of chapter 448 of the Laws of 1885, which amends chapter 427 of the Laws of 1855, section 65 of that chapter is amended so as to read as follows:

“ Such conveyances shall be executed by the comptroller under his hand and seal, and, the execution thereof shall be witnessed by the treasurer or deputy comptroller, and all such conveyances that, have been theretofore executed by the comptroller, and all conveyances of. the same lands by his grantees or grantee therein named, after having been recorded for two years in the office of the clerk of the county in which the lands thereby conveyed are located. And all outstanding certificates of a tax sale, heretofore held by the comptroller, that shall have remained in force for two years .after the last day allowed by law to redeem from such sale, shall, .six months after this act takes effect, be conclusive evidence that the sale and all proceedings prior thereto, from and including the •assessment of the land, and all notices required by law to be given previous to the expiration of the two years allowed by law to redeem, were regular and were regularly given, published and served, according to the provisions of this act, and all laws directing or'requiring the same, or in any' manner relating thereto, and all other conveyances or certificates heretofore or hereafter executed or issued by comptroller shall be presumptive evidence of the regularity of all the said proceedings and matters hereinbefore recited, and shall be conclusive evidence thereof from and after the expiration of two years from the date of recording such other conveyances, or of four years from and after the date of issuing such other certificates.”

This section then provides that such certificates are siibject to cancellation as now provided by law, on a direct application to the ■comptroller. Section 2 of this amendment makes it applicable to Warren county. Stronger language could hardly have been employed by the legislature to make such deeds conclusive, after the lapse of two years from the date of recording, than is used in this amendment. This amendment makes the conveyance conclusive evidence from and after the expiration of two years after the date ■of the recording of the deed.

The deeds to Smith were recorded in the proper clerk’s office more than two years before the alleged cutting of this timber, and the title under them to the lands conveyed became absolute in the grantee; and as there does not appear to have been any proceeding instituted before the comptroller under this act to cancel such conveyances, we do not see how they can now be assailed collaterally in this action.

Webster defines conclusive in law to be “that of which, from its nature, the law allows no contradiction or explanation, an inference which the law makes as peremptory that it will not allow it to be overthrown by any contrary proof, however strong.”

If, then,' as was conceded by the learned judge at the trial, these deeds conveyed the locus in quo, so that proof of the deeds and the cutting of the timber made & prima facie case for the plaintiff, then the fact that the deeds of Gerrit Smith were properly recorded more than two years before the commission of the alleged trespass, made that case which before the act of 1885 was prima facie, conclusive, and precluded all inquiry into the preliminary steps leading up to the making of the deed, and, indeed, all inquiry in an action at law as to whether the deed was upon the lands against which taxes were in arrears.

In other words, so far as these parties were concerned in this action, it gave to the deeds absolute verity and excluded all inquiry into their regularity, leaving the parties to stand alone upon the deeds. However harshly this may appear to operate,upon the rights of the parties, it seems to be the only construction of which that amendment of 1885 is capable.

The object of the legislature obviously was to quiet tax titles and cast upon the landowners the burden of- moving promptly after the recording of comptroller’s deeds given on tax sales, either before the comptroller, to have the error, if any has been committed, corrected, or by some other method of procedure, to correct the error within two years after constructive notice, by the recording of the deed, or that the deed shall become conclusive. That act was, in its nature, a short statute of limitations, and it would seem that relief must be sought before it attached, or the remedies were lost.

If the act of 1885, under the conditions specified, made the deed to Smith conclusive, then inquiry into the validity of the assessment, and the circumstances under which the comptroller’s deeds were given, was improper and inadmissible; and the receipt of evidence on the trial, under the plaintiff’s objections, tending to establish that fact, was an error.

In the People v. Turner (49 Hun, 466, affirmed in 117 N. Y., 227) the trial court excluded evidence offered of irregularities in the assessments to defeat a comptroller’s deed on the ground that the deed was conclusive, and the General Term and Court of Appeals held that the decision was correct, and the evidence was properly excluded, and the General Term treated the act of 1885 as a short statute of limitation, and upon that subject use this language : It-will be seen that the statute acted as a statute of limitations.” And in discussing the same question, Ruger, Oh. J., in delivering the opinion of the Court of Appeals, after quoting from the section above referred to, of chapter 448 of the Laws of 1885, uses this language : “ With reference to the six-months provision, it operates, as to all existing cases, as a limitation upon the taxpayer’s right to assert his claim under pre-existing laws, and, as to all future cases, provides that the lapse of two years from recording shall make that, which was before presumptive evidence only, conclusive upon the rights of the parties. The act seems to be, in its principal aspect, one of limitation, and, as such, is within the constitutional power of the legislature to enact as affecting future cases, and we think, within the settled rules, equally within its power as to existing rights. It gives in all cases, a time for the pei’son aggrieved to establish his rights, unaffected by the provisions of the enactment; but provides that, after the lapse of a certain time, the comptroller’s deed shall be conclusive evidence of the regularity of the proceedings upon which it is based. Legislation of such a character has frequently been held within the constitutional power of the legislature to enact.”

Many other questions are raised on this appeal, among which, is the other defendant’s right, acquired under the conveyances under French’s deed, through which they claim, which we are not called upon to examine, if we hold, as I think we must, that the judge erred in allowing the evidence tending to attack the regularity of the comptroller’s deeds to Smith, through which the plaintiff claims. Those deeds, as we have seen, cannot be assailed in that manner, and the allowance of evidence for that ¡purpose was error, for which a new trial should be granted.

I think the judgment should be reversed and a new trial ordered, costs to abide the event.

Judgment affirmed, with costs.


author: Mayham, J.

text:
    SOLOMON STRASSER, Respondent, v. JOHN L. STAATS, as Noble Grand or President of Mount Hermon Lodge, No. 38, I. O. O. F. of the State of New York, Appellant.

      Dues to lodge of Odd Fellows —words “accrue weekly” not equivalent to “payable weekly ” — what failure to pouy necessity to create a forfeiture of a “funeral benefit" — hearing before the tribunals of the society.

    In an action'to recover a “funeral benefit,” by an assignee of the next-of-kin of a deceased member of a lodge of Odd Fellows, it appeared that the constitution of the lodge provided that “the dues of members of a lodge accrue weekly, and its by-laws must express the'amount at a given rate per week;” and that the by-laws provided that “no brother who is in arrears for dues, fines or assessments of any kind, over the amount of thirteen weeks, 'A' * shall be entitled to receive the benefits of this lodge until after the expiration of six weeks from the time of the payment of such arrearage.”
    The evidence showed that all dues of members were charged and collected quarterly; that the dues of the deceased were charged on the first day of April, July, October and January, in each year, and that the dues charged July 1,1888, were paid and credited on the records of the lodge on July 18, 1888, and that the deceased died August 4, 1888.

      Held, that the phrase “accrue weekly” was not equivalent to “payable weekly” or “ due weekly,” particularly in the case of members who for years had been paying such dues quarterly; that if the dues were payable quarterly they could not be deemed in arrears until after the end of the quarter, namely, July 1,1888, and that in this case the dues had not been in arrear for thirteen weeks, at the time of their payment on the thirteenth day of July, and that the next of kin of the deceased were, by the by-laws of the lodge, entitled to the funeral benefit.
    The constitution, by-laws, rules and regulations of the order required that all disputed questions arising in it must first be submitted to the lodge, and an appeal be taken from its determination to the district grand committee, and then to the grand lodge and to the sovereign grand lodge, and that the resort to the civil courts, until all these remedies were invoked and exhausted, should render any right or claim to any of the benefits provided for null and void.

      Held, that these provisions were not applicable to the case where the claim was made by a person not a member of the order, who could have no hearing in person before it, or access to the tribunals provided by it for the adjustment of questions between its members; nor was the position of the assignee changed by the provision of the constitution that benefits “ shall be dependent upon and recoverable only through the methods provided in the constitution, by-laws, rules and regulations of the order.”
    Appeal bj tbe defendant from a judgment of tbe County Court of Albany county, entered in the office of tbe clerk of Albany county on tbe 26tb day of July, 1890, with notice of an intention to bring up for review upon such appeal the order of the Albany County Court, affirming a judgment rendered against the defendant in the. City Court of Albany, which order was entered in the Albany county clerk’s office on the 26th day of July, 1890.
    The judgment rendered in the City Court was in favor of the plaintiff for fifty dollars, damages and costs.
    The plaintiff is the assignee of the next of kin of Moses Strasser, deceased, who in his lifetime was for many years a member of defendant’s lodge, and on whose death the plaintiff, as the assignee of the next of kin of the deceased, claimed a funeral benefit.
    The defendant is an unincorporated association of more than seven members. This association is a secret organization of Odd Fellows known as Mount Hermon Lodge. By the by-laws of this; lodge, on the death of a member not disqualified, his next of kin are entitled to a funeral benefit of ($50) fifty dollars from the lodge. Moses Strasser, deceased, had been in his lifetime for many years a member of this lodge, and on his death the funeral benefit was by his next of kin assigned to the plaintiff, who is a son of the deceased. This lodge is subordinate to the grand lodge of the State, from which it derives its constitution, and, subject to the provisions of the constitution, enacts its own by-laws ; and among the powers which it may exercise, it may within certain prescribed limits fix the amount of the weekly dues of its members.
    In the exercise of this power this lodge fixed the dues of its members at thirteen cents per week by one of the provisions of its by-laws. The constitution provides that: “ The dues of members of a lodge accrue weekly, and its by-laws must express the amount at a given rate per week.” The by-laws also provide that: “No brother who is in arrears for dues, fines or assessments of any kind over the amount of thirteen weeks * * * shall be entitled to receive the benefits of this lodge -until after the expiration of six weeks from the time of the payment of such arrearage.”
    The evidence shows that all dues of members were charged and collected quarterly. The book of the lodge shows that the dues of deceased were charged on the first of April, July, October and January in each year, and the dues charged July 1, 1888, were paid and credited on the records of the lodge July 13, 1888. The deceased died August 4, 1888.

      J. W. Echar, for the appellant.

      Rosendale & Hessberg, for- the respondent.
   Mayham, J.

This controversy must turn upon the construction to be put upon the provisions of the constititution of the lodge, which provides that “ the dues of members of a lodge accrue weekly,” when read in connection with that provision of the by-laws, which prescribes the ground of forfeiture of benefits, and which is as follows: “No brother who is in arrears for dues, fines or assessments of any kind over the amount of thirteen weeks, * * * shall be entitled to receive the benefits of this lodge, until after the expiration of six weeks from the time of the payment of such arrearages.”

It is quite apparent from the uniform action of the lodge, in not exacting weekly payments of dues from its 'members, -that it did not interpret the phrase “ accrue weekly ” as equivalent to “ payable weekly,” or “ due weekly.” Bouvier defines accrue as to grow to, to be added to, as the interest accrues on the principal. Applying this definition to the phrase “ dues accrue weekly,” and it would not signify that they are payable weekly, but rather that they are estimated or measured weekly, to grow or to be added to each other as interest is added to or increases the amount of a debt.

This, at least, should be its signification when applied to members who for years have been paying quarterly at the rate of thirteen cents per week, rather than the other construction which might result in a penalty or forfeiture, which is not favored in law. If, therefore, these dues were payable quarterly, then no dues could be deemed as in arrears until the end of the quarter. The quarter ended on the 1st of July, 1888, and from that time, and that time only, would dues be deemed to be in arrears, but the “ dues accruing weekly ” thereafter would not be in arrears, because they would not fall due until the first of the succeeding October, when they, under the definition of Bouvier and the usage of the order, would fall due. What dues, then, were in arrears on and after the 1st of July, 1888? Clearly only those which fell due on that day, and they were paid and credited on the 13th of July, 1888, nearly a month before the death of Moses Strasser. No dues, therefore, at the time of the payment had been in arrears for thirteen weeks at the time of the payment on' the thirteenth of July, and consequently no forfeiture could attach, and the next of kin of Moses Strasser were, under the by-laws of this Lodge, entitled to the funeral benefits unless he deprived himself of that right by bringing his action in the civil courts before exhausting all his remedies under the constitution and by-laws of the order.

But it is insisted that the constitution, by-laws, rules and regulations of the order require that all disputed questions arising in it must first be submitted to the lodge, and an appeal taken from its determination to the district grand committee, and then to the grand lodge, and unless permission be refused by that body to the sovereign grand lodge; and that a resort to the civil court until all these remedies are invoked and exhausted shall render any right or claim to any of the benefits provided for in sections 4, 5 and 6, null and void.

It is quite true that controversies between members of a lodge and the lodge itself can and should be settled, or attempts should be made for their adjustment within the order, where provisions are made for such settlement by the rules, constitution or by-laws of the order. (Lafond v. Deems et al., 81 N. Y., 514; Poultney v. Backman, 31 Hun, 49.)

The contract or compact under and in virtue of which members can make claims against the order for benefits must be the constitution .and by-laws to which these members are deemed to have assented; .and as long as they are so fairly and impartially executed that a court ■of equity would not be authorized to intervene to correct abuses; the parties must and ought to be governed by the letter of the ■contract. This would clearly be so where a member of the order was seeking a benefit conferred by the constitution or by-laws of the lodge. (Poultney v. Backman, 31 Hun, 54.) Does the same ■rule apply when the claim is made by a person not a member of the order, who can have no hearing in person before its body, or access to the tribunals provided by it for adjustment of questions between its members.

The case shows that neither the ]3laintifE nor any of the next of Idn of Moses Strasser now are or ever have been members of this order. The remedies which the lodge, and its superior tribunals, have provided are by the constitution and by-laws only open to members of the society. The plaintiff is not such a member, and does not derive title from a member, and cannot appear in the tribunals of the society and prosecute his claim, except by favor. T-Tis right to the funeral benefit is a contract right; and since he has no right to resort to the tribunals of the secret organization, he has not, in a legal sense, failed to exhaust his remedies. The contract provides that the funeral benefit shall be paid over without delay ■to the deceased brother’s nearest of kin.” When this contract matures, it exists between the lodge and non-members.

It would not be a reasonable construction of a contract between the lodge and a non-member to hold that the non-member’s rights under it are subject to the adjudication of his adversary. Its rules are binding upon its members, for they have so agreed; but when a member makes a contract with the lodge for tbe benefit of third parties the contract must be enforceable according to its terms, and ' not according to the subsequent adjudication of the lodge as to the meaning of its terms.

The provisions of the constitution that benefits “ shall be dependent upon, and recoverable only through the methods provided in the constitution, by-laws, rules and regulations of the ordér,” must mean that benefits to members shall be so recoverable, not benefits to which strangers by virtue of a contract made in their behalf with the lodge are entitled. His payment was due without delay.

The judgment should be affirmed, with costs.

Learned, P. J., and Landon, J., concurred.

Judgment affirmed, with costs.


author: Landón, J.:

text:
    ISAAC HOUGH, Respondent, v. THEODORE v. FOLMSBEE, Appellant.

      Order of arrest — when not granted in an action of replevin, although proper in an. action for the conversion of the same property.

    "Wliere an action in replevin is brought to regain possession of personal property , wrongfully and unlawfully detained from plaintiff, or tbe value thereof in case a. delivery cannot be had, and damages for the wrongful detention thereof, an _ order of arrest will be granted only where it is alleged in the complaint that the-property, or a part thereof, has been concealed and removed, or disposed of, so that it cannot be found or taken by the sheriff, and with the intention that it should not be so found or taken, or to deprive the plaintiff of the benefit thereof; although where the same facts are set forth, in an action for the recovery of damages for the wrongful and unlawful conversion of the property, an order of arrest may issue.
    Appeal by tbe defendant from an order of tbe Supreme Court,, made at a Special Term thereof held at tbe city of Albany on December 30, 1890, and entered in tbe office of tbe clerk of the county of Albany on tbe 31st day of December, 1890, which denied a motion to vacate an order of arrest made in tbe above-entitled action.
    Tbe complaint alleged that tbe plaintiff bad employed tbe defendant as bis agent to sell certain goods, wares and merchandise, in tbe name of tbe plaintiff, upon ,the agreement that he should return tbe proceeds of tbe sale of said property to plaintiff as soon as they were received by tbe defendant, and should return tbe unsold property to plaintiff upon demand.
    That, in pursuance of said agreement, certain articles were delivered by tbe plaintiff to tbe defendant; that tbe same bad not been sold by tbe defendant; that the plaintiff was tbe owner thereof j, that tbe value of said goods was $1,169.50; and tbe complaint then, further proceeded as follows:
    “That on or about”tbe 15th day of August, 1890, tbe said articles were duly demanded of defendant by plaintiff, and be refused, and still refuses, to deliver the same, or tbe proceeds thereof, to plaintiff, but has wrongfully and unlawfully detained, and still does wrongfully and unlawfully detain, tbe same from plaintiff, and has concealed, removed or disposed of said property with intent to deprives tbe plaintiff of the benefit thereof.

      “Wherefore plaintiff demands judgment against the defendant for the recovery of the possession of said goods and chattels, or for the sum of eleven hundred and sixty-nine dollars and fifty cents, the value thereof in case a delivery cannot be had, together with the sum of two hundred and fifty dollars, his damages for the unlawful detention thereof, besides the costs of this action.”

      U. V. Burst and Z. S. Westbrook, for the appellant.

      John A. Stephens, for the respondent.
   Landón, J.:

The plaintiff, in his affidavit, says: “ That this action was brought to recover possession of certain personal property wrongfully detained ,by defendant, or the value thereof in case a delivery cannot be had, and damages for the wrongful detention thereof.” The affidavit then recites the facts constituting the cause of action substantially as stated in the verified complaint. The complaint alleges title in the plaintiff to certain goods and merchandise, their value, the delivery thereof from March, 1889, to March, 1890, by plaintiff to defendant under an agreement whereby defendant was to sell the same as agent for the plaintiff and return the proceeds of the sale to plaintiff as soon as received, and to return the unsold part thereof to plaintiff; that defendant did not sell the same; that plaintiff demanded of defendant in August, 1890, the-same or their proceeds, which was refused, and then alleges that defendant wrongfully and unlawfully has detained said goods from plaintiff and has concealed, removed or disposed of the same with intent to deprive the plaintiff of the benefit thereof. Judgment is demanded against the defendant for the recovery of the possession of the goods, or for $1,169.50, their value, in case a delivery cannot be had, together with $250 ■damages for their detention.

The order of arrest cannot be sustained upon the ground that the action is “ to recover a' chattel; ” for, in such case, section 549 of ■the Code of Civil Procedure, provides that the defendant may be ■arrested “ where it is alleged in the complaint that the chattel or a part thereof has been concealed, removed or disposed of so that it cannot be found or taken by the sheriff, and with intent that it should not he so found or taken, or to deprive the plaintiff of the benefit thereof.” This complaint does not allege that the goods have been so concealed, removed or disposed of that they cannot be found or taken by the sheriff with either one or the other intent specified in the section.

But the learned judge at Special Term upheld the order of arrest under that clause of section 549 which provides that the defendant may be arrested in an action “ to recover damages for * * * an injury to property, including the wrongful taking, detention or conversion of personal property.”

Upon the facts stated, the plaintiff might have framed his complaint as for a conversion. But he chose to frame it in replevin. In the former case he .would abandon title and possession and seek satisfaction in damages. In the present case he insists upon his title and seeks to regain possession. A complaint for damages for injury to the goods and for their unlawful detention would be appropriate if the goods had been returned after having been injured and unlawfully detained. Under the complaint as framed the plaintiff can issue a requisition to the sheriff to take possession of the goods (§ 1694), and it does not appear that the sheriff cannot find or take them. For aught that appears this remedy is available. If so, and if the order of arrest is upheld, then the plaintiff will have two remedies, each upon grounds inconsistent with the other; one because he can take the goods, and the other because he cannot. Under section 549 he cannot have an order of arrest if he so frames hi® complaint as to show his right to issue his requisition, unless he also shows that the requisition will not help him.

The order must be reversed, with ten dollars costs and printing disbursements, and motion to vacate granted, with ten dollars costs.

Mayiiam, J., concurred; Learned, P. J., taking no part.

Order reversed, with ten dollars costs and printing disbursements, and motion to vacate granted, with ten dollars costs.


author: Learned, P. J::

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    THOMAS E. BAGNALL, Jr., Appellant, v. HENRY E. BARNARD, Respondent.

      Bernard offered for the recovery of the body of a person drowned — the fact that the party offering it furnishes a diver’s suit, etc., for me by the finder, does not affect the-latter’s right to the rewa/rd.

    In an action brought to recover a reward offered by the defendant to the person, •who should find the body of his son, who had been drowned, it appeared that the plaintiff, having seen this offer of a reward, applied to the defendant’s agent and proposed to search for the body by diving if the defendant would provide the diver’s suit and furnish the man necessary to aid in working the apparatus, to which the defendant’s agent assented, and the suit and man were furnished by defendant, with the aid of which the plaintiff did dive a few times and finally brought up the body of the defendant’s son from the bottom of the river in which he had been drowned.

      Held, thai'the plaintiff was entitled to the reward.
    That the facts in the case did not justify the inference that the plaintiff, in what he did, was acting in the defendant’s employment.
    That the fact that the defendant aided the plaintiff in his work, and in securing the final result thereof, did not impair the plaintiff’s right to recover the reward offered in case he was successful in his search.
    Appeal by tbe plaintiff from a judgment of tbe Supreme Court, entered in tbe office of tbe clerk of tbe county of Clinton on tbe 31st day of March, 1890, after a trial before tbe court and a jury at an adjourned Circuit Court held in Clinton county, at wbicb, by direction of tbe court, tbe plaintiff’s complaint was dismissed and judgment was rendered for defendant, with costs.
    Tbe action was brought to recover tbe amount of a reward offered by the defendant for tbe recovery of the body of bis son, who bad been drowned.

      Sheddon & Booth, for the appellant.

      Henry H. Barna/rd and Royal Corbin, for the resDondent.
   Learned, P. J::

Tbe son of tbe defendant bad been drowned in a river, and the body had not been found. Tbe defendant offered, by publication, a reward of $200 to tbe person who should find tbe body. The plaintiff having seen this offer of a reward applied to the defendant’s-agent, while this offer was outstanding, and proposed to search for the body by diving, if the defendant would provide the diver’s suit and furnish the man necessary to aid in working the apparatus. The defendant’s agent consented and the suit and the man were furnished by defendant. Some necessary structure like a dock was also supplied, by defendant. The plaintiff thereupon did dive a few times and at last found the body of defendant’s son, and brought it up from the bottom of the river to the shore and it was received by defendant.

The plaintiff brings this action to recover the reward above mentioned. The learned justice before whom the cause was tried nonsuited the plaintiff and held that the plaintiff was not the finder; that he was working for defendant and that the finding was more properly the work of the defendant himself in whose employ the plaintiff was acting when he found the body; that plaintiff acted gratuitously; that others working with plaintiff were equally entitled to the reward. "We think that this was not correct. Undoubtedly when the plaintiff proposed to defendant’s agent to dive for the body, the agent could have made an agreement with 'plaintiff that he should do this work for defendant and be compensated by the defendant at an agreed price, or at what the work was worth, and that plaintiff should not be entitled to the proffered reward. If this had been accepted, then a different case would have existed. But we do not find such evidence. There is some evidence on which a jury might be urged to believe that plaintiff’s offer to dive was gratuitous, and made to get himself a reputation. But on this there is a conflict. And we think that the evidence did not justify the court in holding, as matter of law, that the plaintiff did not rely on the reward as his compensation.

Nor do we think that the facts proved established, as matter of law, that the plaintiff was so in the employ of the defendant that it could be said that the defendant found the body. Naturally the defendant was willing to provide any appliances which plaintiff needed in order to dive. But the providing of such appliances did not, as matter of law, show that plaintiff was defendant’s employee. The offer of $200 for finding the body was standing open, in no way withdrawn. At the very time when the defendant’s agent was providing these appliances, and at the time when by their aid the plaintiff began Ms work of diving, the defendant was still proclaiming that lie would give $200 to tlie person wlio found the body. Tlie plaintiff might justly have relied on this.

It is true that what the defendant did, aided the plaintiff in his work, .and thus aided in the final result. But it was the plaintiff who found the body. And it would be a strange meaning to give to tlie offer •of a reward, that it was not to be payable in case the defendant rendered any assistance in the search. An offer of a reward in .such a case is intended to stimulate exertion by compensating success beyond the ordinary value of the work done. Unless the offer is plainly and clearly withdrawn, so that the person who .attempts the work has no longer this stimulus to effort, he ought to receive what had been promised ; even though he who made the ■offer may think that he could have had the work done at a cheaper price.

The judgment is reversed, new trial granted, costs to abide event.

Landon and Mayham, JJ., concurred.

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


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    In the Matter of the Petition of GEORGE and JOHN CHRISTIE for the Appointment of a Trustee, under the Will of OLIVER BUTTERFIELD, Deceased, in the Place and Stead of RHODA BUTTERFIELD, Deceased.

      Trust, when valid as a power — when the power is attached to the office of executrix — unlawful suspension of the power of alienation.

    'The testator, by his will, gave one-third of his estate, real and personal, to his wife Rhoda, and the rest and residue to his eight children and one grandchild. The estate was to be paid over within a year after the youngest child became twenty-one. He appointed his wife executrix and his son executor of his will, in which he further provided: “ I give and devise all my real and personal estate of what nature or kind soever to my wife Rhoda, executrix, * * * in trust, for the payment of my just debts and the legacies above specified, with power to sell and dispose of the same.”

      Held, that as there was no authority given to Rhoda, as executrix, to receive the rents and profits of the property, no estate passed to her, but that the trust was valid as a power, and that the land passed to the devisees named in the will subject to the execution thereof.
    That such power in trust was held by her as a part of her authority as executrix, and not as an independent power, and might be executed, after the death of the-executrix, by an administrator with the will annexed, and the case was not one in which the Supreme Court could appoint a trustee of the power and thus separate it from the office of executor.
    The will further provided that no part of the testator’s estate should be sold until all of his children arrived at the age of twenty-one years, of whom five were under that age at the time of his death.

      Held, that this created an unlawful suspension of the power of alienation, as until the arrival of all the five children at the age of twenty-one years any conveyance made by the devisees would be liable to be defeated by the subsequent execution of this power of sale.
    Appeal by Andrew Minton and Fred. R. Butterfield from an order of the Supreme Court, entered in the office of the clerk of the county of Washington on the 20th day of March, 1890, which provided as follows:

      “It is ordered, That Frank H. Graham, of Salem, N. Y., be and he hereby is appointed trustee, under the will of Oliver Butterfield, deceased, to perform and execute the trust contained in said will in the place and stead of Rhoda Butterfield, deceased, and that the said trustee hereby appointed do, before he enter upon the duties of his trust, execute and file in the office of the clerk of Washington county a bond, with sufficient surety, in the penal sum of one thousand ($1,000) dollars, conditioned for the faithful performance of his trust, the same to be approved by a justice of this court or a county judge; and further ordered, that the petitioners’ costs and disbursements herein be adjusted and paid out of the proceeds of any property that may be lawfully sold by said trustee in execution of the said trust.”
    The proceeding was brought for the appointment of a trustee to perform and execute the trusts contained in the will of Oliver Butterfield, and to sell certain real estate and to pay the petitioners their debts against the estate of said deceased, with interest thereon, out of the proceeds thereof. '
    The will of Oliver Butterfield contained the following provisions:

      “First. After all my lawful debts are paid and discharged I give and bequeath to my wife Rhoda, one-third of all my real and personal estate of every name and nature.

      “ Second. I give and bequeath all the rest, residue and remainder o.f my real and personal estate, of what nature or kind soever, to my children, Duane, Harriet, Jerome, Elijah, Rhoda, Mary, Fred., Harley and my grandson George, to be divided equally between them, share and share alike, except as to my daughter Harriet, whose share shall be but one-half the amount paid to each of the other children; which several legacies I direct and order to be paid to the said respective legatees within one year after the youngest of my said children shall have arrived at the age of twenty-one years. I do hereby nominate and appoint my wife Rhoda executrix, and my son Duane executor, of this my last will and testament, hereby-revoking all former wills by me made.
    “ I give and devise all my real and personal estate, of what nature or kind soever, to my wife Rhoda, executrix of this my last will and testament, hereinbefore nominated and appointed, in trust, for the payment of my just debts and the legacies above specified, witk power to sell and dispose of the same at public or private sale, and at such time or times, and upon such terms and in such manner, as to her seems meet, provided, however, that no part of my real estate, as aforesaid, shall be sold until each and all of my said children, hereinbefore named, shall have arrived at the age of twenty-one years.”

      Young (& Kellogg, for Andrew Minton, appellant.

      A. D. Arnold, for Fred. R. Butterfield, appellant.

      Job Q. Sherman and Matthew Hale, for petitioners, respondents.
   Learned, P. J.:

Oliver Butterfield died July, 1868. By his will he gave one-third of his estate, real and personal, to his wife Rhoda. He gave the-rest and residue, real and personal, to his eight children and one grandchild equally, except that one daughter was to have half of tlieamount which the others had. The legacies were to be paid within a year after the youngest child became twenty-one. He made his wife executrix and his son executor. Pie then continued: “ I give and devise all my real and personal estate of what nature or kind soever to my wife Rhoda, executrix, * * * in trust for the-payment of my just debts and the legacies above specified, with power to sell and dispose of the same.” As there was no authority given to Rhoda, executrix, to receive the rents and profits, no estate passed to her. But this trust was valid as a power, and the land pássed to the devisees, subject to the power. (1 R. S., m. p. 729, § 56.) Therefore, the title to the land vested at once in the devisees named in the will; and all which Rhoda, the executrix, took was a mere power in trust, which enabled her to sell the land and apply the proceeds. She had no estate as trustee. As to the one-third which was devised to her, she could sell and convey that as owner. She held that power in trust as a part of her authority as executrix, not as any independent power. There had been much discussion in the courts whether a power thus given to an executrix to sell land for the purpose of paying debts and legacies passed to the administrator with the will annexed or not. It is not necessary to go back to the old cases, beginning with De Peyster v. Clendining (8 Paige, 296), for the matter has now been definitely settled by Mott v. Ackerman (92 N. Y., 539, at pages 553, 554). It is there held that such power belongs to the office of executor and passed to the administrator with the will annexed. This decision is a construction of 2 Revised Statutes (m. p. 72, § 22), defining the power of administrators with the will annexed. And thus construed, that section must constitute a practical exception to the general rule that, on the death of a trustee, the trust or the power in trust vests in the Supreme Court. (1 R. S., m. p. 730, § 68, 734, § 102.) Hence it follows that if there be any power in trust under this will yet to be enforced, it must be enforced through an administrator with the will annexed. This is not the case of a power in trust not connected with the office of executor. On the ■contrary, if this power be still in existence, it belongs to the office ■of the executor. And as the executrix is dead it must be executed (if at all) by an administrator with the will annexed. To hold otherwise would be to disregard the decision last cited, which must be held to have settled the question on which there had been uncertainty.

There are some other difficulties in this case, and we do not intend to decide whether the petitioner is, or is not, entitled to relief in any court. It is enough to say, first, that this is a mere power in trust which conveyed no estate to the executrix, Rhoda; second, that the power, as it is given to pay debts and legacies, and especially as real and personal estate are mingled, belongs to the office of executor, and is not to be separated therefrom; third, that it would pass to the administrator with the will annexed; and, fourthly, that for these reasons it is not for the court to appoint a trustee of the power and thus to separate it from the office of executor.

Whether these petitioners can show themselves at this late day to-be creditors of the deceased, and can obtain the appointment of an administrator with the will annexed, we do not decide. (2 R. S., m. p. 71, § 27.) There has been great delay. It does not appear precisely when the will was proved. But it is averred that the deceased left personal property worth over one thousand dollars,, which, of course, would be the first fund for the payment of the debts.. The executrix died July 29, 1887, and the heirs of the deceased have sold some of the land.

There is another point which should be considered. The will of the deceased provides that no part of his estate shall be sold until all of his children arrive at twenty-one. At his death five were under that age. Therefore, the trust power could not be executed until these five had arrived at twenty-one. The estate of the devisees was subject to the trust power, so that they could not convey a dear-title until the five minors had reached twenty-one. In Henderson v. Henderson (113 N. Y., 1, at p. 13) it was held that a clause that executors having a power should not be compelled to make partition, etc., until five years from probate, did not suspend the power of' alienation. For it was said that the power of sale was not suspended when the executor was merely permitted to delay. (Robert v. Corning, 89 N. Y., 225.) The present case is different. The executrix is here absolutely prevented from making a sale for a time limited by the arrival of five minors at maturity. And as the existence of this power, if valid, would suspend the absolute power of alienation by the devisees, the suspension, to be valid, may not be beyond the two lives limited by statute. (1 R. S., m. p. 723, § 15.) The absolute power of alienation is suspended when there are no persons in ■being by whom an absolute fee in possession can be conveyed. (§ 14.) Now, the executrix.cannot execute the power until the majority of the five minors. And, until that time, the conveyance of the devisees would be liable to be defeated by the subsequent execution •of tbe power. Hence the power does suspend the absolute power ■of alienation until that time, and is, therefore, void.

The order should be reversed, with ten dollars costs and printing -disbursements, and motion denied, with ten dollars costs.

LaNdoN and Mayham, JJ., concurred.

Order reversed, with ten dollars costs and printing disbursements, •and motion denied, with ten dollars costs.


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    LEE CHAMBERLIN, Respondent, v. CHARLES McCARTHY, Appellant, Impleaded with Others.

      Mechanic's lien for articles furnished to a tenant — surrender of the lease by him — injunction to prevent the use of the articles by the landlord.

    Tlie tenants in the possession of certain demised premises purchased a hoiler and steam fittings and put them into the buildings thereon, and thereafter abandoned the premises and surrendered their lease without having paid for such boilers and steam fittings, for which a mechanic’s lien was filed by the vendor against the interest of said lessees in the premises.
    Subsequently an action was brought to foreclose such mechanic’s lien.

      Meld, that the owners of the fee of the land would not be enjoined from using the property which has thus been attached to it.
    Appeal by the defendant Charles McCarthy from an injunction order granted by the county judge of Rensselaer county, and •entered in the office of the clerk of said county on the 16th day of December, 1890, by which it was adjudged “ that the defendant Charles McCarthy and his attorneys, counselors, agents, tenants and ■assistants, be, and each and every of them is, under the penalties by law prescribed, enjoined and restrained until the further order ■of this court in the premises, from, in any manner, using, interfering with or removing from the premises, owned by said. Charles McCarthy, on Grand street, in Troy, N. Y. (more fully described in ihe complaint herein), the boiler, pipes, radiators, manifolds, valves ■and steam fittings put into-said premises by the plaintiff, Lee Chamberlin, and now being used in connection with a Turkish bath in said building, by the tenants of said McCarthy, upon which said Toiler, pipes, radiators, manifolds, valves and steam fittings said Cbamberlin has a mechanic’s lien, now being foreclosed. The following are the grounds upon which the order is granted, viz.: That the use of the boiler, pipes, radiators, manifolds, valves and steam fittings above set out by the said McCarthy, his tenants, agents and servants, during the pendency of the foreclosure of the mechanic’s lien now being foreclosed, tends to impair and destroy the same, and tends to defeat the object of the foreclosure of the mechanic’s lien.”
    The action was brought for the enforcement of a mechanic’s lien filed against the interest of William H. Brind and íl. S. Pashkian, tenants in the occupation of certain premises in which the plaintiff had placed a boiler and certain steam pipes and other fixtures for said Brind and Pashkian, who had subsequently abandoned the premises and surrendered their lease thereof.

      Thomas 8. Fagcm, for the appellant.

      Rufus M. Townsend, for the respondent.
   Learned, P. J.:

We think this injunction should not stand. McCarthy owned the land and leased it to Brind and Pashkian. They purchased of plaintiff certain boilers and steam fittings and the like, and had them put in the buildings. For these purchases they owe. The plaintiff filed a mechanic’s lien against the interest of Brind and Pashkian in the premises. And he now brings this action to foreclose.

It appears that Brind and Pashkian abandoned and surrendered their lease; and McCarthy, as owner, took possession, and that his present tenants are using the boiler and fittings and the like. The plaintiff fears that these things will be injured by such use and, therefore, obtained an injunction forbidding McCarthy to use them until the decision of the action. The effect of the filing of the notice of lien, assuming it to be valid, is to create a lien on the interest which Brind and Paskkian had in the premises. , Whether this boiler and these fittings became a part of the property of the owner, or whether they were such fixtures that Brind and Pashkian could remove them at the end of their term, we need not decide. We may assume that if the plaintiff had, by contract with McCarthy, put in these fixtures he would have had a lien on McCarthy’s interest. But a reference to chapter 342, Laws of 1885, section 1,. will show that the lien is only on the interest in the land of the person for whom the work is done, either directly or through a contractor. The language is, whether owner in fee, or of a less estate, or whether a lessee for a term of years,” etc.

Now, while it may be that after the filing of the notice of the lien the lessee could not convey the leasehold estate free from the lien, yet it is by no means clear that the landlord could not re-enter for non-payment of rent. However this may be, there is no propriety in preventing the owner of the fee from using the property which has thus been attached to his land. If the tenants had lawfully removed these fixtures, then they would not have been affected by the notice of lien, because that is a lien on the interest in land. And if these fixtures are rightfully removable, then they are not part of the land.

On the other hand, if these fixtures became a part of the land (as plaintiff seems to claim under Ward v. Kilpatrick, 85 N. Y., 413), then McCarthy, as the landlord, is rightfully in possession and cannot. properly be prevented from using his property. The plaintiff had no lien except on the leasehold interest of Brind and Pashkian. "Whether that has ceased or not is not shown. At any rate, the mechanic’s lien cannot operate to increase the rights which the lessee had against the lessor.

The injunction order is reversed, with ten dollars costs and planting disbursements, and motion for injunction denied, with ten dollars costs.

LaNDON and Mayham, JJ., concurred.

Order reversed, with ten dollars costs and printing disbursements, and motion denied, with ten dollars costs.