text:
    WILLIAM H. ORDWAY, Respondent, v. THE VILLAGE OF CANISTEO, Appellant.

      Municipal corporation — liability of, to a riparian neighbor for damages resulting from the diversion of a stream..
    A Aunicipal corporation is not, by tbe mere fact of its being sucb a corporation, exempt from tbe rule that, irrespective of any question of negligence or malice, a riparian owner, who, by a willful act, diverts tbe waters of a natural.stream from its accustomed channel and causes them to flow upon tbe lands of a neighbor, is liable for tbe resulting damage.
    Nor is a municipal corporation exempt from sucb liability by reason, merely, of tbe fact'that tbe acts on its part complained of were done in tbe supposed exercise of its authority conferred by law to protect tbe public and private property within its corporate limits from damage by floods, where tbe infringement of tbe right of its riparian neighbor to have tbe stream continue to flow in its natural channel, direction and volume, as it bad been accustomed to flow, is direct and immediate, and the damage complained of was certain to result from sucb infringement in a time of flood, and is permanent in its character.
    When, in sucb a case, tbe riparian neighbor’s land is rendered practically worthless by reason of the diversion of tbe stream from its natural channel, tbe value of sucb land per acre previous to the diversion is a proper measure of damages.

      Appeal'by tlie defendant, the Village of Canisteo, from a judgment of the Supreme Court for $849.32, damages and costs, entered in the office of the clerk of Steuben county on the 2d day of December, 1891, in favor of the plaintiff William H. Ordway, on the report of a referee.
    The action was brought to recover damages to the plaintiff’s lands and farm, caused by the defendant’s acts in casting waters, gravel, etc., upon the farm, and otherwise cutting, injuring and destroying the same through diverting the waters of a stream, known as Bennett’s creek, from its natural channel.

      Eli ®ouoe, io" the appellant.

      F II. Robinson, for the respondent,
   Dwight, P. J.:

- The farm of the plaintiff adjoineu the territory of the defendant on the east, and Bennett’s creek formed the boundary of the latter on the south-east and south, and then flowed easterly through the former. It was a non-navigable stream, subject to high and sudden freshets in times of heavy rains or melting snows, and at such times overflowed its banks at the points where they were lowest. In its. normal state it flowed in a natural channel and between fairly well defined banks. In its flow past the village it made a bend nearly at a right angle around the point of a hill on the opposite side, and,as was natural, its waters, in the course of years, impinging upon the left bank at the apex of the bend had caused the bank at tHat point to recede, and widened the bend of the creek to nearly twice its width a short distance above. At this point, also, which was about eighty-five rods above the west line of the plaintiff’s farm, there had been, as the refei ee finds, for more than thirty years, a natural depression in said left bank, extending down the creek for a distance of from twenty to twenty-five rods, over and through which depression the waters of the creek had, for all that time, been accustomed to flow in times of freshets in no particular course or defined channel, but northerly to the village and through its streets doing more or less injury to the walks, streets and property of the village.

About the 1st of June, 1889, there was an extraordinary rise in the waters of the creek, from heavy and protracted rains, causing a general overflow of its banks, particularly at the line of depression above mentioned, so that tbe waters flowed through the streets of the village and did much damage therein. At that time the water also overflowed portions of the plaintiff’s farm, lying north of and next to the creek, but, as the referee finds, did not cut or wash those lands and did little or no damage thereto, but rather, apparently, improved and enriched them by the deposit of soil and sediment from the water coming thereon.

In the fall, and previous to November first of the same year (1889), the defendant constructed a line of piling, planked on the side toward the stream, conforming generally to the course of the left or northerly bank of the creek, but at such distance therefrom, toward the center of the channel, as to narrow the stream by about one-third of its width for a distance of about forty-five rods, including its widest part, in the bend of the stream and opposite the depression in its north bank above mentioned. At the widest point in the bend the structure of piling and planking was placed in the stream at a distance of more than one hundred feet from the north bank

This distance was gradually diminished as the stream grew nar_ rower, until the structure was abruptly terminated at ,a distance of about one hundred and fifty feet west from the plaintiff’s west line.

At about the same time, and previous to November, 1889, the defendant plowed up and loosened large bars of gravel which had formed years' before in the bed of the stream, south of where the planking was placed, and left the gravel loose to be washed out and carried down the stream by subsequent floods, with the purpose of forming a new channel for the stream.

Throughout some portion of the structure thus erected in the bed of the stream, especially in the bend and in front of the depression in the bank above described, the piling and planking was made considerably higher than the natural banks, while as the structure approached the line of the plaintiff’s land it was cut down to, or lower than the height of the natural bank.

In the month of November, 1889, and again in IVIay, 1890, freshets occurred in Bennett’s creek, during which, as the referee finds in substance, the waters were turned from their natural currents, piled up and confined by the structure above described, prevented from escaping at the points above the plaintiff’s land where they had been accustomed to overflow, accelerated in tlieir current by the smooth surface of the planking, and, so changed in direction and increased in volume and velocity, were cast upon the plaintiff’s farm, cutting away his banks, flowing with a swift current over his land, cutting holes and channels therein, carrying away the soil, and depositing banks of gravel thereon. The referee finds that three acres of the plaintiff’s land was thus rendered practically worthless, estimates the previous value of the land at $150 an acre, and makes that estimate the measure of the damages to be awarded to the plaintiff.

There can be no question but that if the defendant had been a private person who had sought thus to protect his own land at the expense of his adjoining riparian proprietor, he would have been liable for all the inj'ury caused to the latter by reason of such acts on his part. The case would have been directly amenable to the maxim sic utere tuo ut non, etc. It would have been, in its essen-. tial features, identical with the case of Hartshorn v. Chaddock (lately considered in this court and the Court of Appeals, 40 N. Y. St. Rep., 953; 47 id., 838.) It is unnecessary to do more thani refer to the opinions in the two courts in that case, and to the authorities cited therein, to sustain the general proposition stated by Judge O’Brien in the latter opinion, that, “ irrespective of any question of negligence or malice, a riparian owner who, by his willful act, diverts the water of a natural stream from its accustomed channel and causes them to flow ujion the lands of his neighbor, is liable for the resulting damage.” (Citing McKee v. D. and H. C. Co., 125 N. Y., 353.)

The same decision in both courts is also authority in favor of the rule of the measure of damages adopted by the referee in this case.

The only question remaining seems, therefore, to be, whether the municipal character of the defendant, and the fact that the acts on its part complained of, were done in the supposed exercise of its authority, conferred by law, to protect the public and private property within its corporate limits from damage by floods, takes the case out of the rule above stated.

It seems to us very clear that this ease, upon its facts, is no exception to the general rule. It is clearly not within the principle of the cases of Radcliff’s Executors v. The Mayor (4 N. Y., 200); Ely v. Rochester (26 Barb., 133), and Atwater v. Canandaigua (56 Hun, 293; S. C. on appeal, 124 N. Y., 608). In these eases the work authorized or directed by law was special in its character, and required to be done in a particular place, and within very narrow limits of discretion, in a particular manner, and the resulting damage was temporary and purely consequential. In this case the infringement of the plaintiff’s right, viz., to have the stream which flowed • through his land continue to flow in its natural channel, direction and volume as it had been accustomed to flow, was direct and immediate, and the damage complained of was certain to result therefrom in a time of flood, and was permanent in its character. The case is clearly rather within the principles recognized in Noonan v. City of Albany (79 N. Y., 470); Seifert v. City of Brooklyn (101 id., 136); Byrnes v. City of Cohoes (67 id., 204); New York Central and Hudson River Railroad Company v. City of Rochester (127 id., 691); Could v. Same (106 id., 46).

Granting to the defendant full authority to take such action as might be necessary and proper to protect its property and that of its inhabitants from the floods — yet even here the principle applies that it is bound so to use its own as not to injure another’s — so to protect its own that the loss and damage which it averts .from itself is not cast upon another.

There is, in truth, no principle upon which a municipal corporation can claim immunity from such liability as would attach to an individual for acts in disregard of the rights of others such as are portrayed in this case.

Ve find no error in the trial of the action, or in its determination, which should vitiate the judgment.

The judgment should be affirmed

Macomber and Lewis, JJ., concurred.

Judgment appealed from affirmed.


source: Caselaw Access Project

author: Dwight, P. J.:

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. CHARLES. H. LAURENCE, Appellant.

      Lm'ceny by means of false pretenses — pretenses and representations concerning future actions only arre insufficient.

    Neither at common law nor under the Penal Code do statements of pretenses and representations, in the nature only of promises or agreements, and relating wholly to future actions or events, constitute false pretenses; and such statements will not support an indictment purporting to charge the crime of larceny committed by means of false pretenses and representations.
    Where such an indictment contains no charge that the defendant committed the crime of larceny, except by means of the alleged false pretenses and representations therein described, which are insufficient because they concern the future only, it cannot be sustained as a common-law indictment for larceny, rejecting the allegations of false pretenses as surplusages, but must be held to fail to charge any crime.
    Appeal by tbe defenant Charles H. Laurence from a judgment of the Court of Sessions of Niagara County, entered on the 28th day of June, 1892, in the clerk’s office of said county, convicting the defendant of the crime of grand larceny in the first degree.
    The following is the text of the indictment:
    “ The grand jury of the county of Niagara, by this indictment, accuse Charles H. Laurence of the crime of grand larceny in the first degree, committed as follows:
    “That the said Charles H. Laurence, on or about the .tenth day of August, in the year of our Lord one thousand eight hundred and ninety-one, at the city of Lockport, within said county of Niagara, with force and arms, with intent to deprive and defraud the Lock-port Street Railroad Company, a corporation duly organized and existing under and by virtue of the laws of the State of New York, of the proper goods and chattels hereinafter mentioned, and of the use and benefit thereof, and to appropriate thesame to the use and benefit of him, the said Charles H. Laurence, did then and there feloniously, falsely and fraudulenly pretend and represent to the said Lockport Street Railroad Company, if the said Lockport Street Railroad Company would permit him, the said Charles H. Laurence, to ship to Buffalo two of the horse-cars, numbered, respectively, seven (7) and eight (8) pf the said Lockport Street Railroad Company; that lie, the said Challes lí. Laurence, would have the said two horse-cars so transformed that they might be run by electricity as a motive power instead of by horse power, and return the said two cars so transformed to .the barn of. the said Lockport Street Railroad Company, in Lockport, with all possible speed and ready and fit to be used upon the tracks of the said Lockport Street Railroad Company, before the 1st day of January, 1892, and the said Lockport Street Railroad Company then and there believing the said false pretenses and representations so made as aforesaid by the said Charles II. Laurence, and being deceived thereby was induced by reason of the false pretenses and representations so made as aforesaid to deliver, and did then and there deliver to the said Charles H. Laurence the said two horse-cars numbered, respectively, seven (7) and eight (8) of the said Lockport Street Railroad Company of the proper goods, chattels and personal property of the said Lock-port Street Railroad Company, and the said Charles H. Laurence did then and there feloniously receive and obtain the said proper goods, chattels and personal property of the said Lockport Street Railroad Company, by means of the false pretenses and representations as aforesaid, with intent to deprive and defraud the said Lockport Street .Railroad Company, feloniously and of the use and benefit thereof, and to appropriate the same to his own use.

      “ Whereas, in truth and in fact, the said Charles H. Laurence did not then, nor at any time, ship to Buffalo the said two horse-cars, numbered, respectively, seven (7) and eight (8), to be transformed ,so that they might be run by electricity as a motive power instead of by horse power, and did not intend to have the said two horse-oars so transformed, and did not return or intend to return the said two horse-cars, so transformed, to the barn of the said Lockport Street Railroad Company,' in the said city of Lockport, with all possible speed, and ready and fit to be used upon the tracks of the ■said Lockport Street Railroad Company, before the 1st day of January, 1892, and has never since returned the said cars to the Lockport Street Railroad Company, but sold the said two horse-cars and appropriated the proceeds thereof to his own use and benefit.
    “ And whereas,-in truth and in fact, the pretenses and representations so made as aforesaid by the said Charles H. Laurence to the ¡said Lockport Street Railroad Company, were then and there in all respects utterly false and untrue, as he, the said Charles H. Laurence, at the time of making the same, then and there, well knew.
    “And the said Charles LL Laurence, on the day and in the year aforesaid, at the city of Lockport, within the said county of Niagara aforesaid, in the manner and form aforesaid, and by the means aforesaid, obtained from the possession of the owner thereof, the said Lockport Street Railroad Company, the said two horse-cars, numbered, respectively, seven (7) and eight (8), of the worth and value of three hundred and seventy-five dollars, each car, with intent to deprive and defraud the true. owner, the said Lockport Street Railroad Company, of its property and of the use and benefit thereof, and to appropriate the same to the use of him, the said Charles LI. Laurence, .and the said two horse-cars, he, the said Charles H. Laurence, from the possession of the true owners thereof, the said Lockport Street Railroad Company, by means of the false pretenses and representations, so made as aforesaid, feloniously, did steal, take and carry away, contrary to the form of the statute in such cáse made and provided, and against the peace of the people of the State of New York and their dignity.
    “P. F. KING,

      “District Attorney of Niagara Country.”

      R. Crowley, for the appellant.

      P. F. King, district attorney, for the respondent.
   Dwight, P. J.:

We are of opinion that the indictment in this case charges no^ offense. It purports to charge the crime of larceny committed by means of false pretenses and representations. But the facts stated do not constitute that offense. ' The pretenses and representations-alleged are in the nature only of promises or agreements, and relate wholly to future actions or events; it is elementary that not-even fraud can be predicated of representations concerning the future. (Gray v. Palmer, 2 Robt, 500; affirmed, Ct. of App. (41 N. Y., 620.) Neither at common law, nor under the Penal Code of this State, do such statements constitute false pretenses. (Ranney v. The People, 22 N. Y., 413; The People v. Blanchard, 90 id., 314.)

But the district attorney argues that, though the allegations purporting to charge false pretenses are not sufficient for that purpose, they may be treated as surplusage, and the residue will be sufficient to charge larceny at common law ; and this, we may suppose, was the effect of the decision of the learned trial court given in response to a motion to direct a verdict of not guilty in the following terms:

"We have reached the conclusion that this indictment is sustainable as an indictment m et armis, not as an indictment for obtaining the property by false pretense.” And so, perhaps, it might have been if, as the district attorney assumes, it anywhere charged the defendant with obtaining possession of the property by means of the alleged false pretense, and afterwards, with felonious intent, appropriating it to his own use; or even if it anywhere charged him in general terms with stealing, taking and carrying away the property without making it a part of the charge that it was done by means of the alleged false pretenses and representations. But such is not the case. There is the charge that the defendant obtained possession of the property by the false pretenses and representations alleged ; but this is coupled only with the charge that possession was thus obtained with the intent to appropriate it to his own use, and there is nowhere the allegation that, after so obtaining the possession, he did actually so appropriate.

So, also, it is charged in the last paragraph of the indictment, that the defendant did steal, take and carry away the property in question, “ contrary to the form of the statute,” etc., but this, it is expressly alleged he did, by means of the false pretenses and representations aforesaid.” It is impossible to find in the indictment any charge that the defendant committed the crime of larceny, except by means of the alleged false pretenses and representations therein described; and since those pretenses and representations were not of a character upon which crime could be predicated, we conclude that no crime was charged in the indictment.

The judgment and conviction should be reversed and the defend ant discharged.

Macombeb and Lewis, JJ., concurred.

Judgment and conviction of the Court of Sessions of Niagara county appealed from reversed, and the defendant discharged.


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    THE PEOPLE OF THE STATE OF NEW YORK ex rel. OAK HILL CEMETERY ASSOCIATION, Respondent, v. LUTHER A. PRATT and Others, Assessors of the City of Rochester, Appellants.

      Costs in proceedings by certiorari to review tax assessments.

    ■Costs in proceedings by certiora/ri to review tax assessments, under cnapter 269 of the Laws of 1880, are governed by that act and not by tbe provisions of the Code in reference to costs in special proceedings generally.
    By force of section 7 of that act, which declares that appeals may be taken in proceedings thereunder as from an order, and shall be heard and determined in like manner, costs of such appeals, when allowed against assessors or other officers whose proceedings are reviewed, as permitted by section 7 of the act, are to be taxed as costs on appeals from orders under section 3239 of the Code of Civil Procedure.
    Appeal by tbe defendants, Luther A. Pratt and others, assessors, etc., from an order made at the Monroe Special Term, entered on the 30th day of June, 1892, in the clerk’s office of Monroe county, directing a retaxation of costs.

      O. D. Keihl, for the appellants.

      J D. Coffey, for the respondent.
   Dwight, P. J.:

The proceeding was by eertiora/ri to review an assessment. It went, by appeal of both parties, from the Special Term to the General Term, and thence to the Court of Appeals. The latter court sustained the appeal of the relator, and made a final order in its favor, with costs in the General Term and Court of Appeals. These ■costs the clerk taxed as on appeals from orders. The Special Term ■directed a retaxation and allowance of costs, as in an action, and from that order this appeal is taken.

We think the clerk was right, and that the order for a retaxation was erroneous. Certiorari is, no doubt, a special proceeding, and the award and taxation of costs therein, generally, are governed by section 3240 of the Code of Civil Procedure. But the case of certiorari against assessors, to review their official action, is an exceptional one, and is governed, in respect to the award and taxation of costs, by the provisions of chapter 269 of the Laws of 1880, which is the statute under which the proceeding is taken.

By section 6 of that statute it is provided that costs shall not be allowed against assessors or other officers whose proceedings may be reviewed under this act, unless it shall appear to the court that they acted, with gross negligence, in bad faith or with malice.” In the case of the People ex rel. Smith, Jr., v. Asten (1 N. Y. St. Rep., 37) the Court of Appeals held that this provision (§ 6) relieved the assessors from costs only upon the hearing at Special Term on the return of the certiorari; that an appeal from the determination there made was subsequently provided for (by § Y) and directed to be heard and determined, in like manner, as an appeal from an order; and that the costs of such appeal might be awarded, in the discretion of the court, under section 3239 of the Code of Civil Procedure, which is the section providing for costs on appeals from orders.

Section Y, above referred to, of' the act of 1880, provides for an appeal from the determination made under this act, which shall be taken “ as from an order, and shall be heard and determined in like manner.” The decision in the case of Asten (above), though announced in a very brief memorandum, is a distinct recognition by the Court of Appeals of the exceptional character of the special proceeding by certiorari against assessors, which is given by the act cited, and of the rule that the costs of appeals in that proceeding are to be alfowed, if at all, as on appeals from orders, under section 3239, and not, as in actions, under section 3240 of the Code.

In the case of the People ex rel. Wallkill Valley Railroad Company v. Keator (101 N. Y., 612), the same court, referring to the provision of section Y (above),- to the effect that all appeals in this proceeding shall be heard and determined as appeals from orders, says: “"We do not think that this is merely permissive, and that an appellant has the option to appeal either under the Code or under the section named. The provision is a part of the whole scheme, and was intended to provide the precise way in which an order, judgment or determination under that act could be reviewed.” The language, “ order, judgment or determination,” here used is quoted from the statute, but the Court of Appeals insists that such final determination is an order and not a judgment. In the People ex rel. Western Union Telegraph v. Dolan (126 N. Y., 166, 179), referring to the final determiñation appealed from, the court says: “ The counsel calls it a judgment of the General Term; it is, in truth, an order, and has been so held to be by us; ” citing the case of Keator (above).

We think we follow the plain indication of these cases when we hold that the proceeding by certiorari against assessors, given by chapter 269 of the Laws of 1880, is peculiar and exceptional among special proceedings; that it is governed in all respects by the act by which it is provided ; that apjieals therein are to be had' and treated in all respects as appeals from orders, and that costs on such appeals, when allowed in the discretion of the court, are to be taxed as motion costs, and not as the costs of an appeal from a judgment.

The order of the Special Term should be reversed, and the. taxation by the clerk confirmed, with costs.

Macomber, and Lewis, JL, concurred.

Order for retaxation of costs appealed from reversed, with ten dollars costs" and disbursements, and the taxation by the clerk confirmed.


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    CHARLES A. PHILLIPS and Another, Respondents, v. GEORGE L. MASON and Others, Appellants.

      Duty of the trial court when no submission to the jury is requested — agree/mentto buy bach stock sold, at the price paid and one per cent a month added, is not usurious as matter of law.

    When, at the close of the testimony on a jury trial, the defendant moves for a nonsuit, and the plaintiff moves for the direction of a verdict, and neither party requests the submission of any question to the jury, the duty devolves upon the court of deciding every question of fact as well as of law which may exist in the case.
    An agreeement in writing by the seller of corporate stock to buy it back at any time, at the option of the buyer, at the price paid therefor and " one per cent a month added,” is not, as matter of law, on its face, a contract void for usury in its inception; and in the absence of evidence going to show that the negotiation between the parties was, in the outset, to effect a loan of money,, or that the scheme for a sale and resale of stock was suggested as a mode of accomplishing that purpose, it will warrant a direction of a verdict for the plaintiff in an action brought thereon by the buyer of the stock against the seller.

      Appeal by tbe defendants, George L. Mason and others, from a judgment of the Supreme Court for $635.90, damages and costs, entered in the office of the clerk of Monroe county on the 26th day of March, 1892, on the yerdict of a jury, in favor of the plaintiffs, rendered at the Monroe Circuit by direction of the court; and also from an order, entered in said clerk’s office on the 9th day of May, 1892, as amended by an order, entered in said clerk’s office on the 16th day of May, 1892, denying a motion for a new trial.

      A. Becker, for the appellants.

      G. G. Werner, for the respondents.
   Dwight, P. J.:

The action was to recover money paid by the plaintiffs to the defendants under an agreement in writing, of which the following is a copy:

“Rochester, N. Y.,FeVy 27, 1891.
“We hereby agree that Charles A. and Edward A. Phillips will not be called upon for second and third payments on share No. — in the Empire Natural Gas Land Association of Buffalo, N. Y. We also further agree to buy back share No. —, Empire N. G. L. Asso., at any time, at the price paid for the same, and one per cent a month added, provided they wish to sell the same.
“ (Signed.) MASON, WILEY & BUTLER.”

The agreement was delivered, with a certificate of stock answering the description therein, by the defendants to the plaintiffs on the day of its date. The stock was paid for by the plaintiffs with the note of a third person, which was afterwards discounted by the plaintiffs themselves; and at the expiration of nine months the plaintiffs tendered to the defendants a return of the stock certificate and demanded “ the price paid for the same, and one per cent a month added.”

It must be said that this transaction strongly suggests a device to cover usury, so that we are not surprised to find the defense of usury interposed in the action brought by the plaintiffs to enforce the agreement above set forth; but we do not find that defense established by the proofs.

On the trial the plaintiffs put in evidence the agreement; testified to the payment for and delivery of the stock certificate, and to the subsequent demand by them upon the defendants for the repayment of the price, with the increase of one per cent a month, and the refusal of such demand, and rested. The defendants gave no testimony, but their counsel moved for a nonsuit, and counsel for the plaintiffs moved for the direction of a verdict. There was no request on the part of either to submit any question to the jury. This, devolved upon the court the duty of deciding every question of fact, as well as of law,’ which might exist in the case. (Dillan v. Cockcroft, 90 N. Y., 649.)

The only question, whether of law or fact, in the case, was whether the agreement on which the action was brought was a contract for the loan and borrowing of money, at an usurious rate of interest. It was, undoubtedly, a contract which, at the option of the plaintiffs, would have the effect of a loan of money, insomuch that the money paid for the stock might be recovered by the plaintiffs, and the payment of the money was a sufficient consideration for the agreement to repay it. (Eno v. Woodworth, 4 N. Y., 249.) And it may be that it was the understanding of the parties at the time the agreement was made, that this option would be exercised, and that, the transaction was, thus, a mere device to cover the exaction and allowance of usury. But there is no evidence to that effect outside of the agreement itself. By the terms of the agreement, to which in the absence of evidence to the contrary full effect must be given, it was a sale of the stock, with the privilege to the plaintiffs to have their money back, with the increase stipulated, at any time when they should desire to resell. It was capable of being construed as in the nature of a guaranty on the part of the defendants, that, the stock would appreciate in value at the rate of at least one per cent a month during the time it should be held by the plaintiffs. Under the agreement the plaintiffs obtained full title to the stock, and might dispose of it as they saw fit; so that if the market-price increased beyond the rate mentiond they were at liberty to sell it for the better price.

Certainly it cannot be said, as matter of law, that the agreement was in, its inception a contract for the loan of money, nor that the increase agreed to be paid by the defendants, at the option of the plaintiffs, was interest reserved or compensation for the loan.

If evidence had been given by the defendants tending to show that the negotiation between the parties was, in the outset, to effect-a loan of money, and that the scheme for a sale and resale of stock was suggested as a mode of accomplishing that purpose, there would,, then, no doubt have been a question for the jury or the court, whether the scheme was not a device to cover usury. In the absence of any evidence to that effect, and on the face of the agreement itself no case was made for the submission of that question to either' tribunal. The direction of a verdict was properly given, and the judgment and order must be affirmed.

Macomber and Lewis, JJ., concurred.

Judgment and order appealed from affirmed.


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    GEORGE F. PERKINS and Others, Plaintiffs, v. DAVID O. BATTERSON, as Receiver of the WHITEMAN PULP AND PAPER COMPANY, Defendant.

      Chattel mortgage by a manufacturing coi'poration on raw material to be subsequently purchased and goods to be subsequently manufactured — a mm'tgagee who has taken possession under the terms of the mortgage is entitled, to recover from a receiver the proceeds of sale of the goods.

    A chattel mortgage, given by a manufacturing corporation upon all the goods of a designated kind manufactured, and in process of manufacture, at its mills, and upon all of such goods thereafter to be manufactured, or in process of manufacture, and upon all the raw material on hand, or thereafter to be on hand, as security for an actually existing indebtedness, in excess of the total value of the property then or thereafter covered thereby, although not upheld as a mortgage, and as to third parties whose rights may have intervened as to after-acquired property, may, in the absence of fraud, be construed between the parties thereto as a contract to give a lien upon the raw material thereafter purchased, and upon the goods made therefrom, which should take effect as soon as property of either kind came into the ownership of the mortgagor.
    Aside from such lien, the mortgagee in such a chattel mortgage, containing a provision that in case of default he may enter the premises and take and sell the mortgaged property, and out of the proceeds pay himself the amount due, who has entered the premises of the mortgagor and notified its superintendent that he took possession of the articles designated therein under his mortgage, and has placed a keeper in charge, who is ejected by the company, is entitled, by force of the contract created by such provision of the mortgage, to the fund arising from a sale of such articles thereafter made by a receiver, appointed in an action thereafter brought by the president of the corporation against the company, as sole defendant, for its dissolution, although part of the raw material which entered into the goods so sold had been purchased by the corporation and stored upon its premises after the execution and filing of the chattel mortgage.
    In such a case, the mortgagee having taken possession of the goods under the contract to that effect in the mortgage, and being entitled to sell the same for payment of his debt before any steps had been taken for the appointment of a receiver, the question is not one of lien but of title to property actually vested in the mortgagee, which was not diverted by the appointment of the receiver.
    Submission of a controversy without action, under section 1279 of the Code of Civil Procedure.

      G. D. Ridgway, for the plaintiff.

      J. 8. Ilunn, for the defendant.
   Dwight, P. J.:

The plaintiffs are chattel mortgagees, and the defendant is the receiver of the “ Whiteman Pulp and Paper Company,” a domestic corporation, lately doing business at Dansville, in Livingston county; and the controversy relates to a fund in the hands of the defendant, arising from the sale by him, under an order of the court, of a quantity of pulp made by the company, and which was in the mill at the time the defendant took possession. The plaintiffs claim the fund by virtue of their chattel mortgage, upon the following facts:

On the 13th of October, 1891, the company was indebted to the plaintiffs in. the sum of $18,500, for borrowed money, used in its business, and on that day gave to the plaintiffs its chattel mortgage to secure the payment of that sum, on demand, as well as any further advances to be made, not exceeding $25,000 in all. The mortgage, by its terms, covered all the straw pulp manufactured and in process of manufacture at the company’s mills, and all the unmanufactured straw on hand • and also all the straw pulp thereafter to be manufactured, or in process of manufacture, at said mills, and all the unmanufactured straw thereafter to be on hand.

The mortgage provided that, in case of default, the plaintiffs might enter the premises and take and sell the mortgaged property, and out of the proceeds pay themselves the amount due, etc.

On the 19th day of January, 1892, the indebtedness ft the company to the plaintiffs had been increased, by advances made subsequent to the date of the mortgage, to the sum of $22,000 and upwards, all of which was due on demand. On that day the plaintiffs made demand of payment, which was refused, arid they thereupon, by virtue of their chattel mortgage, took possession of all the mortgaged property outside of the mill. They also, on the same day, went into the mill, and made an inventory of the pulp manufactured and in process of manufacture therein, and gave notice to the superintendent and the secretary of the company that they took póssession of it under their mortgage. On the next day, January twentieth, they again entered the mill, and put a keeper in charge of the pulp manufactured and in the process of manufacture, and again notified the superintendent that they took possession of the pulp under the mortgage. The superintendent denied their right to take the property, and ordered them to quit the premises. They refused to do so, and retained their keeper in charge of the pulp until, in the afternoon of that day, he was forcibly removed from such charge, and from the premises, by the officers and servants of the company.'

On the same day that the plaintiffs took possession of the pulp (January twentieth), Alonzo J. "Whiteman, president of the company, verified the complaint in an action to be brought by himself as plaintiff, against the company as sole defendant, alleging its insolvency and praying for its dissolution j and on the next day (January twenty-first) he made application to the Supreme Court, at Special Term, on that complaint and his affidavit, for the appointment of a receiver. On his application, the company itself, and certain creditors, other than the plaintiffs in this action, were represented, and on their consent the order was made appointing the defendant herein such receiver. He took possession of the pulp in question after the plaintiff’s keeper had been forcibly ejected from the mill. The plaintiffs thereupon gave him notice that they had taken possession of the pulp under their mortgage, and procured an order for the receiver to show cause, at the next Special Term of the court, why he should not deliver the pulp to them. On the return of the order to show cause, the court made an order by which the receiver was directed to sell all the pulp manufactured, and in process of manufacture in said mill, and hold the proceeds of such sale separate from all other moneys coining into his hands as such receiver, subject to the further order of the court.

Pursuant to that order the receiver sold the pulp, realized as the net proceeds thereof the sum of $2,393.42, which he holds subject to the order of the court, and this submission was agreed upon to obtain an adjudication by the court of the question of the title to the property, and, therefore, to the fund.

In addition to the facts above stated, the following are among those agreed upon for the purposes of the submission: “ That a small portion of the straw, out of which the pulp covered by said order was made, was straw purchased by the said company, and stored by it upon its premises after the execution and filing of said chattel mortgage, and was paid for by the said company in its regular course of business; that the amount of said straw was about one-sixth of the amount of straw used in the manufacture of the said pulp; that the remainder of the straw used was straw which was covered by the chattel mortgage.”

“ That the value of said pulp, as manufactured, was represented by about one-third straw, and the remainder by chemicals and labor sold and furnished to said company after the execution and filing of said chattel mortgage, and which have not been paid for, and there are now no funds in the receiver’s hands applicable to pay ment of said chemicals or labor. That said pulp, as manufactured, was composed of the straw used, none of the said chemicals used remaining as constituent parts thereof.”

Upon the foregoing statement we can have no doubt that the plaintiff’s contention must prevail to the full extent. Though the mortgage, as such, and as to third persons whose rights might have intervened, could not be upheld as to that portion of the pulp, which was, in any sense, “after acquired property” (Coats v. Donnell, 94 N. Y., 177), yet, as between the parties to the mortgage, that instrument was to be construed as a contract to give a lien upon straw to be thereafter purchased, and upon th¿ pulp to .be made therefrom, which took effect as soon as the property of either kind came into the ownership of the mortgagor (Kribbs v. Alford, 120 N. Y., 519; Deeley v. Dwight, 132 id., 59.) This contract was without suggestion of fraud, and was given as security for an actually existing indebtedness to an amount greatly in excess of the total value of the property then or thereafter to be covered thereby.

But it is not by virtue of the lien merely, created or to take effect under the provisions of the contract, that the plaintiff’s claim the fund in question. The contract, besides its provisions for a lien, gave to the plaintiffs the right to take possession of all the pulp, manufactured or in process of manufacture, at any time in possession of the debtor company, for the purpose of applying it to the payment of the debt; and this they did, in all respects, in accordance with the contract before any rights of the defendant had intervened. They were in possession of the pulp under their contract, and entitled to sell it for the payment of their debt before any steps even were taken for the, appointment of a receiver. It was no longer, therefore, a question of lien, but of title to property actually vested in the plaintiffs; and there was nothing in the appointment of the receiver which could operate to divest that title. By his appointment he became vested with title only to such property as was then in the company, and he took no interest in or control over the property which had been actually reduced to possession by the plaintiffs under their unquestioned contract with their debtor. The wrongful act of the latter in forcibly ejecting the custodian of the plaintiffs from the mill could have no effect to divest them of their-absolute title which- they had acquired by taking possession under their contract.

We are clearly of the opinion that the plaintiffs are entitled, under the submission, to judgment for the whole of the fund arising from the sale of the pulp.

Macomber and Lewis, JJ., concurred.

Judgment ordered for the plaintiffs, on the submission, for the fund in question.


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    MARY HENNING, Respondent, v. LIBBIE MILLER, as Executrix of CATHARINE BARBARA NESTEL, Deceased, Appellant.

      Svidence of an oral agreement that land conveyed should revert to the grantor is not rendered com/oetent by the claim that such agreement formed the consideration for the deed.

    Evidence of an oral agreement on tlie part of a person, since deceased, that, in consideration of a conveyance to her in fee of certain land which was subject to her dower right, the property should revert to the grantors at her death, is incompetent as being in violation of the rule which excludes evidence of an oral agreement in contradiction of a written instrument, and of that provision of the statute of frauds which declares that no estate or interest in lands shall be created or assigned unless by a deed or conveyance in writing.
    The character of the consideration for an agreement is not a test either of its admissibility in evidence or of its competency to create or convey an estate or interest in lands.
    Appeal by tlie defendant, Libbie Miller, as executrix of Catharine Barbara Nestel, deceased, from a judgment of the Supreme Court, entered on the report of a referee in favor of the plaintiff in the Erie county clerk’s office July 13,1892; and, also, from an order of the Erie Special Term, entered in the Erie county clerk’s office July 8,1892, denying her motion to set aside the report of a referee, and for a new trial, on a case and exceptions, in the case of a reference under the statute of a disputed claim against her testatrix’s estate.

      H. 8. Heath, for the appellant.
    <7. W. Sielcmon, for the respondent.
   Dwight, P. J.:

In the lifetime of the defendant’s testatrix, Catherine Barbara Nestel, the plaintiff united with her two sisters in a quit-claim deed to their mother (the testatrix) of all their and each of their right, title and interest in and to a piece of land of six acres, in the town of Hamburg, for a consideration expressed in the deed. The three grantors were the owners of the land in fee simple, subject only to the dower right of their mother, the grantee. Since the death of the latter the plaintiff has preferred a claim against her estate for the value of an undivided one-third of the land so conveyed, alleging as the ground of such claim an oral agreement on the part of the deceased, in consideration of their conveyance, that the property should all come back to the three heirs in equal shares if she should die.

The claim, being disputed, was referred under the-statute. On the trial evidence was received of the alleged oral agreement under the objection of the defendant, and the referee reported in favor of the claim.

We think the defendant’s exceptions to the admission of the evidence objected to and to the findings of the referee were well taken, and furnished incontrovertible ground for the defendant’s motion to set aside the report.

The admissio.n of the testimony was in violation of the elementary rule of evidence which excludes evidence of an oral agreement in contradition of a written instrument •— in this case a deed under seal; and the finding was in equal violation of that provision of the statute of frauds which declares that no estate or interest in lands shall be created or assigned unless by a deed or conveyance in writing.

In this case, if the effect of the oral agreement upon the deed executed by the plaintiff be considered, it is manifest that it cuts Jown an estate in fee to an estate for life merely. And the finding gives effect to an alleged agreement to create or assign an estate or interest in remainder, in lands, without a deed or conveyance in writing, but by an oral agreement only.

- The suggestion is that the oral agreement sought to be enforced was the consideration of the deed executed by the plaintiff. But this suggestion is without force upon the question here involved. Every agreement, whether oral or written, unless nudum pactum, is made upon some consideration, and the character of the consideration is not a test either of its admissibility in evidence or of its competency to create or convey an estate or interest in lands.

Neither the ancient rule of evidence nor the ancient statute have been abrogated by recent decisions of the courts. (See Woodard v. Foster, 45 N. Y. St. Rep., 77; Hutchins v. Hutchins, 98 N. Y., 56, and the cases cited in both.)

The order appealed from must be reversed.

Macomber and Lewis, JJ., concurred.

Judgment and order appealed from reversed and a new trial granted, with costs to abide the final award of costs.


author: Lewis, J.:

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    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. CARSON J. SHELDON, CHARLES J. FERRIN, SHELDON N. COOK and EDWARD S. BROWN, Appellants.

      Conspiracy — association of retail coal dealers to regulate prices.

    An association was formed of tlie retail coal dealers of a city, the main purpose of which was to fix prices below which coal should not be retailed in the city and vicinity, and the scheme of which organization, if fully carried out, would practically compel, under prescribed penalties, every coal dealer in the city to join it and regulate his business by its constitution and by-laws, which prohibited soliciting business, except as provided therein, and the taking of club orders of associated buyers at reduced prices, and provided for keeping the retail price of coal uniform, so far as practicable, and required a certain vote of the association to change the price.

      Meld, that the association constituted a combination in restraint of trade, and that membership in such association would support a conviction on an indictment ' for conspiracy to commit acts injurious to trade.
    That this was so, although the constitution of such association also provided that no price was to be made at any time, amounting to more than a fair and reasonable advance over wholesale rates, or than the current prices of the coal exchanges at certain designated neighboring cities when figured upon corresponding freight tariffs, and although the rental price of coal actually fixed by the association was a fair price.
    Appeal by the defendants, Carson J. Sheldon and others, from a judgment of the Niagara County Sessions, rendered on the 28th day of June, 1892, upon a verdict convicting the defendants of the crime of conspiracy, with notice of an intention to bring up for review, upon such appeal, an order of that court denying the defendants’ motion for a new trial.

      E. M. Ashley, for the appellants.

      P. F. King, for the respondent.
   Lewis, J.:

The defendants were convicted in the Niagara County Sessions of the crime of conspiring together to commit acts injurious to trade. They were retail dealers in coal in the city of Lockport, and with eight or ten other dealers in coal in that city, they organized an association called tlie Loelcport Coal Exchange. They adopted a •constitution and by-laws, the provisions of which are very voluminous. It is not necessary to rehearse them. Many of them were innocent, and to be commended. The main purpose, however, of the association was to fix prices, below which coal should not be retailed in Lockport and its vicinity.

The scheme of the organization, if fully carried out, practically •compelled every dealer of coal in that city to join the association, .and regulate his business by its constitution and by-laws. They were required to sell coal at prices fixed, from time to time, by a vote of the members of the association. The members were required, when joining the organization, to pay an initiation fee of $100, and to pay annual dues of five dollars.

Penalties were prescribed for a violation of the constitution and "by-laws of the association. Soliciting business was prohibited, except in the manner prescribed in the constitution. Dealers were not permitted to take club orders of associated .buyers at reduced prices. Under-the head of “ discipline,” it was provided that should a member be charged with violating any of. the provisions of the by-laws, or any rule or resolution of the exchange, he should be summoned before the secretary to answer the charge. If the secretary should decide to sustain the charge, the member was to be •declared in default, and considered in default until five-sixths of the members should vote to reinstate him. By being in default, he forfeited all rights to the money, property or other value held by the exchange. If charged with violating any provision of the constitution or by-laws, the member was required to make affidavit that he had, in no instance, sold or delivered coal for which he had not received the full price at which the majority of the other members were selling coal of the same size at the same time, and that he had not, directly or indirectly, given any rebate, commission or other concession equivalent to cash, thereby actually reducing the established market-price made by the Lockport Goal Exchange. When a member defies the exchange by persistent wrong-doing, and is declared to be in default, and, if persistent, the secretary shall notify the shippers of coal to the Lockport market that the said member is in default and persistent, and for this reason is not entitled to the privileges of membership in the Lockport Exchange.”

The constitution further provided that the price of coal at retail should, as far as practicable, be kept uniform, and it required a five-sixth vote of all members of the Exchange at any meeting to advance or reduce the retail price. of coal; no price was to be made at any time amounting to more than a fair and reasonable advance over wholesale rates, or that was higher than the current prices of the Exchanges at Rochester and Buffalo, when figured upon corresponding freight tariff. Fourteen of the coal dealers of the city joined the association, and they included all the dealers but one in the city. One dealer neglected to qualify as a member. Notice was given to the wholesale dealers, who furnished coal to the dealers in Lock-port, of the failure of said dealer to join the association, and the wholesale dealers receiving such notice, though they had been accustomed theretofore to sell coal to said dealer, refused thereafter to furnish him with coal. After the organization of the association a meeting of the members was held and they voted to fix the price of certain kinds of coal at four dollars and seventy-five cents a ton. Such coal theretofore, owing to the cutting of prices among the dealers, had been selling at less than cost; the evidence tended to show that the price of four dollars and seventy-five cents, fixed by the association, was a fair price for coal at that time in Lockport. The constitution provided for a secretary and treasurer of the association, who should have access to the books of the dealers to enable him to ascertain if they were conforming their business to the rules of the association.

The jury found the defendants guilty, and they were severally sentenced to pay a fine of fifty dollars, or each stand committed to the common jail of Niagara county not exceeding one day for each dollar of said fine, in case of failure to pay the fine. The question presented by this appeal is, whether the defendants were proven guilty of the crime for which they were convicted. It is an important question, especially in view of the large number of similar organizations existing in this country at the present time, and the important influence they exert upon business affairs. The purpose of the association, if carried out, would undoubtedly have had an important effect upon the coal traffic in the city of Lockport.

It would have materially affected and practically prevented competition in one of the necessaries of life. An arbitrary price at •which coal should be sold was to be fixed by a majority vote of the members, and every ton of coal was to be sold at the price thus fixed, neither more nor less. A purchaser who desired a large quantity of coal could not obtain better rates than one desiring to purchase a. single ton. While the rate which had been fixed by the association, the evidence tended to show, was a reasonable one, the constitution gave them power to change the rates at any time, and there is nothing in the constitution prohibiting their fixing extortionate, prices, provided associations of the same character in Buffalo and [Rochester should also establish extortionate prices. Trade is defined by Jacobs, in his law dictionary, to mean “mutual traffic, buying,, selling or exchange of articles between members of the same community.”

Bouvier, in his law dictionary, defines trade as “Any sort of dealings by way of sale or exchange.”

It was held in the case of the People v. Fisher and Others (14 Wend., 9), that a combination among the journeymen shoemakers of the village of Geneva, for the purpose of regulating the price for manufacturing boots, and carrying such rules into effect by overt acts, was indictable as a misdemeanor. This was before the passage of the law permitting the orderly and peaceful assembling or co-operation of persons employed in any calling, trade or handicraft, for the purpose of obtaining an advance in the rate of wages or compensation, or of maintaining such rate.

In DeWitt Wire Cloth Company v. New Jersey Wire Cloth Company (14 N. Y. Supp., 277), in the New York Common Pleas, Special Term, it was decided by Judge Pryor that an association of manufacturers of wire cloth, formed for the avowed purpose of regulating the price of the commodity, each of the members stipulating, under a heavy penalty, that he will not sell at less than a specified rate, was contrary to public policy and illegal.

He refers to a number 'of authorities which hold that whatever destroys, or even restricts, any competition in trade, is injurious, if not fatal to it, and that a combination to control prices is illegal.

It was held in Leonard v. Poole (114 N. Y. 371), that conspiring to unlawfully advance the price of an article of food was unlawful.

In Hooker v. Vandewater (4 Denio, 349), the proprietors of five several lines of boats, engaged in the business of transporting persons and freight on the Erie and Oswego canals, entered into an agreement among themselves, fixing the rates of freight and passage upon their boats, and to divide the net earnings among themselves, according to certain proportions fixed in the articles; it was held to be a combination, tending to destroy competition between the several lines engaged in the business, and unlawful. Judge Jewett, speaking for the court, says: “ The transaction amounted, as I think, to a conspiracy, to commit an act injurious to trade,’ within the legal meaning of the statute, denouncing it as a crime, and was, therefore, illegal and void.” It is the policy of the law to encourage trade and commerce, and combinations which tend in restraint thereof are illegal. Agreements made to take trade out of the realms of competition are against public policy. (Santa Clara V. M. and L. Co. v. Hayes 76 Cal., 387.) Even although it may not appear that such agreement did really produce any result detrimental to public interests. (Atcheson v. Mallon, 43 N. Y., 147.) The case seems to have been fairly submitted to the jury, and they found the defendants to have been guilty of acts which tended to injure trade. We think their verdict was justified by the evidence.

The judgment and order appealed from should be affirmed, and the case remitted to the Niagara County Sessions, with directions to proceed thereon.

Dwight P. J., and Macombeb, J., concurred.

Judgment of conviction and order appealed from affirmed, and the case remitted to the Court of Sessions of Niagara county, with directions to proceed thereon.


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    WILLIAM T. LONG, Respondent, v. WILLIAM LONG, as Survivor of GEORGE W. ROOT and DUNCAN MacINTYRE, Appellant.

      Sale of infants’ real estate — incumbrance on the estate — payment of, without an order— laches- — liability of the surety on the guardian’s bond.

    In an action against a surety on tlie bond of a special guardian, given in proceedings for the sale of infants’ real estate, brought by one of the former infants, it appeared that the proceeding had been instituted by the infants and their general guardian to obtain a sale of the lands in order to pay off incumbrances thereon, which incumbrances included a judgment in favor of the present defendant; that the proceeding was regularly conducted by a reference, referee’s report, and order of the court directing the special guardian to contract for a sale; that the guardian thereupon reported a contract of sale thereof for a certain price; that an order was granted confirming his report and ordering him to convey the infants’ interest; that he accordingly made a conveyance, received the money therefor, and applied a portion of it in payment of the judgment.
    No question as to the propriety of such payment was made for more than twenty years thereafter, but after the death of the guardian and the settlement of his estate the present action was brought against the defendant, as one of the sure, ties on the guardian’s bond, to recover the infants’ interest íd the money so paid upon the defendant’s judgment, on the ground that such payment by the guardian was a misappropriation and conversion of the fund, for the reason that an order of the court was not previously obtained for the payment, under the rule of court (Rule 69 of 1858, present Rule 58), and for the reason that no such order could have been made as the judgment was void.

      Held., that, whether the judgment was void or voidable was not material as it was conceded thatthe claim on which it was based was a valid one against the infants, estate, and the court could have ordered the claim paid if no judgment had been entered thereon.
    That, although the money was paid without an order and in violation of a rule of court, the estate of the infants had had the benefit of it as they were the residuary legatees of the estate.
    That the present plaintiff, being one of the former infants, was not equitably entitled to the money so paid, because he had had the benefit of the fund; and the long acquiescence, without instituting proceedings for an accounting, was strong evidence of his assent to the payment.
    That the surety was entitled to make the same defense that his principal could have made.
    That the proper order of court might have been obtained nunc pro tuno; and that the case was one in which the court might disregard one of its own rules, where, to adhere to a strict compliance therewith, would work an injustice.
    Appeal by tbe defendant 'William Long from a judgment of the Supreme Court, in favor of the plaintiff William T. Long, entered in -the office of the clerk of Livingston county on the 11th day of April, 1892, on the report of a referee for $5,000 and costs.
    The rule of the Supreme Court in reference to the disposition of funds arising from the sale of infants’ real estate, in force at the time of the proceeding set forth herein (Rule 69 of the Rules of 1858), contained the following provision: “If the proceeds of the sale exceed five hundred dollars, and the guardian has not given security by mortgage upon real estate, he shall bring the proceeds into court, or invest the same under the direction of the court, for the use of the infant.”
    This provision is embodied in the present Rule 58 of the General Rules of Practice.

      Abbott <& Abbott, for the appellant.

      J. B. Adams, for the respondent.
   Lewis, J.:

This action was brought upon the bond of a special guardian-given in proceedings in this court for the sale of infants’ real estate, plaintiff being one of the infants, and the defendant William Long,, and one George W. Root, uniting as sureties, with Duncan MacIntyre as principal. MacIntyre was the special guardian of the-plaintiff and his sister for the purposes of such sale. Plaintiff and his sister, by Duncan MacIntyre, their general guardian, made and presented to this court their petition, dated February 1, 1868, for the sale of their lands. The petition was in due form, and alleged that said infants were entitled to certain lands, describing them, that there were incumbrances thereon consisting of a judgment in favor of said William Long for the sum of $10,245, no part of' which had been paid, and that they were also incumbered by a. legacy of $4,000, and other liens, and prayed that the lands might be sold to pay said incumbrances. There was the usual reference to ascertain the truth of the facts stated in the petition, and whether a sale of the premises, and what part thereof, would be beneficial to the infants, and the reasons therefor. The premises sought to be sold consisted of several pieces of laud. The referee reported that the incumbrances on the premises, by a judgment, mortgages and a legacy, amounted to the sum of $24,245 ; he reported in favor of a sale, fixing the value of each of the several parcels of land, and the price at which they should be sold. The report was duly confirmed, and an order entered directing said guardian to contract for the sale of the land at the pricés fixed by such report. The guardian reported to the court that he had entered into a contract to sell the ■“ Gilmore Farm,” that being one of the parcels described in the petition, for $9,150. An order was granted April 20, 1868, confirming said report and ordering the guardian to convey the infants’ interest in said premises on payment of such purchase-money. The guardian conveyed and received the money therefor, and applied a portion of said money towards the payment of the Long judgment, and, with said moneys, also paid a $4,000 legacy, which was, by the will, made a charge upon the land. The special guardian died more than twenty years ago, and his estate has been settled and distributed. After the death of the special guardian the mother of the infants was appointed special guardian in the proceeding in his stead, and other parcels of the land were sold, and the proceeds used in paying other claims against the estate. No question as to the propriety of the payment appears to have been raised for .more than twenty years after it was made. This action was brought against the defendant William Long, as one of the sureties of the special guardian, to recover the infants’ interest in said money so paid upon the judgment. It is the plaintiff’s contention -that such payment by the guardian was a misappropriation and conversion of the funds, for the reason that an order of the court was not previously obtained directing such payment to be made. He further claims that no such order could have been made for such payment, because the judgment was void. The learned referee declined to pass upon the question of the validity of the judgment entered in favor of Long, but put his decision on the ground that it was a misappropriation of the money to pay it out without an order of the court, for the reason that a rule of the court required a special guardian to bring the fund into court.

Whether the judgment was void or voidable is not material, because it is conceded that the claim of William Long against the estate was a valid one for the amount of tfye judgment. The court could have ordered the claim paid if no judgment had been entered thereon. The only question is, as to whether the payment of the claim, under the facts and circumstances presented in this case, must be held to have been a misappropriation and conversion of the money by the special guardian.,

The proceeding was instituted to sell these particular lands to pay the Long judgment. It was a debt the estate was liable to pay. All of the proceedings were regular, except that the money was used to pay this debt without an order of the court having first been obtained directing the payment so to be made. Had the facts appearing upon this record been presented to the court at any time after the special guardian had applied the money, a mmo pro tuno order would unquestionably have been granted directing its payment. The guardian neglected to apply for such order, perhaps, for the reason that there were other parcels of land thereafter to be sold. If such order had been obtained, it would be a perfect protection to the guardian, and to the defendant as his surety. The money was paid without the order, and in violation of a rule of this court; but the estate owned by’this plaintiff and his sister has had the benefit of such payment, as they were the residuary legatees of the estate. Had not the property been sold in this proceeding, some other proceeding would have been instituted by the defendant Long to subject the land to the payment of his debt and the other debts of the estate. It is certainly a great injustice to compel the surety now to pay this claim. The plaintiff is not equitably entitled to it, because he has had the benefit of the fund.

Had the plaintiff made application, after the guardian had paid the money, for an order requiring him to paythe money into court, would not the court have refused it, under the circumstances ?

The surety is entitled to make the same defense that the principal could have made. (Hughart v. Spratt, 78 Ky., 313.) Plaintiff charges the guardian with the conversion of the money, when, in fact, he applied it to the discharge of plaintiff’s estate from liability for a debt.

Clearly, plaintiff was benefited; then, what is the extent of his. injury by the wrongful act of the guardian ?

This is not a case of a voluntary payment made by a stranger, giving him no right of action or claim against the debtor, but it was made by the guardian in good faith, in legal proceédings instituted for the sale of the estate for the purpose of discharging it of the debt.

And, besides,.the acquiescence for so many years without instituting proceedings for an accounting and requiring the money to be paid into court is strong evidence, under the circumstances, of plaintiff’s assent to the payment of the money.

Courts have frequently, 'in the settlement of guardian’s accounts, allowed them credit for advances made from their own funds for the making of permanent improvements to the estate of their wards,, when they had no authority so to do without a previous order of the court, if the expenditures were made in good faith, believing that what they did was for the ward*s benefit, if it be made to appear that the court, upon presentation of the facts, would have granted the requisite order. (Waldrip v. Tulley, 48 Ark., 300; Kingsbury v. Power, 22 N. E. Rep., 482.)

Should the defendant be compelled to pay this judgment, he would probably be entitled to subrogation and could reclaim the amount paid from the estate, if a sufficient amount thereof in value could be found in the possession of the plaintiffs. But it seems to us that, as the judgment has nothing to rest upon but the absence of the order, justice demands, under the circumstances, that the rule requiring the entry thereof should not be enforced.

There are authorities holding that the Supreme Court may disregard one of its rules, where, to adhere to a strict compliance therewith will work an injustice. This, we think, is such a case.

In the ease of Hunt v. Hunt (58 N. Y., 666), referred to in the referee’s opinion, the special guardian applied the money to the payment of the debts of the father of the infants. The court held there was no authority for such an application without the express authority of the court, but adds the significant remark, “ as such was not the purpose for which the sale was ordered; ” the inference being that, had the money been paid as in the case at bar, the court would probably have held the payment proper.

The judgment appealed from should be reversed and a new trial granted, with costs to abide the event; and the same disposition should be made of the case of Francis A. Dike against the same defendant, which was argued at the same time, and presents the same, questions.

Dwight, P. J., and Macomber, J., concurred.

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


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    ROBERT GALE, Appellant, v. THE MUTUAL AID AND ACCIDENT ASSOCIATION, Respondent.

      Accident insurance — injury ascertainable by touch although not visible to the eye.

    To justify a recovery upon a policy of accident insurance, containing a provision that it should not extend to a disability caused by disease, or to any injury of •which there should be no external or visible signs, the injury need not necessarily be visible to the eye; it is sufficient if it'can be ascertained by applying the hand to the exterior of the body.
    Hence, where the holder of a certificate of membership in a mutual accident association, which contained the above provision, received an accidental injury which he claimed had sprained his diaphragm and contiguous muscles, which injury was not visible to the eye, but physicians testified that they ascertained it by manipulating the muscles, which were located so near the exterior of the body as to be readily felt with the hand, and by finding them rigid and tense, and that they were satisfied the rigidity of the muscles and the accompanying pain were not feigned or caused by disease, although they were aided in locating the injury by information derived from the injured person himself, a nonsuit should not be granted, in an action brought to recover the amount, payable under the certificate, by reason of such accident.
    Appeal by the plaintiff, Robert Gale, from a judgment of the Monroe County Court, entered in the Monroe county clerk’s office on the 20th day of July, 1892, dismissing the complaint, and from an order denying a motion for a new trial made upon the minutes, and entered in said clerk’s office on the same day.

      Ma/rtin -W. Cooke, for the appellant.

      Hen/ry M. Hill, for the respondent.
   Lewis, J.:

The action was brought upon an accident policy, issued to the plaintiff by the defendant, to recover indemnity for disability arising from injuries claimed to have been sustained by the plaintiff while engaged in lifting.

The certificate of membership contained a provision that benefits, under the certificate, should not extend to disability caused by disease, or to any injury of which there should be no external or visible signs.

It was, therefore, incumbent upon the plaintiff to show, in order to maintain his action, that there was upon his body an external and yisible mark or sign of the injury lie claimed to have sustained. The trial court held that he had failed to make such proof, and hence granted a nonsuit. The plaintiff contends that there was evidence on that point which should have been submitted to the jury.

The plaintiff was engaged, with an assistant, at the time he claimed to have sustained his injuries, in lifting a heavy iron fire-pot to a furnace on to an elevator. The assistant’s hands slipped -off from the fire-pot, and allowed the whole weight of the iron to rest upon the plaintiff, which, as he claimed, strained his diaphragm and recti muscles. He was thereby, as he alleged, so disabled that he was confined to his house, unable to work, for a long time. The recti muscles he along each side of the median line of the abdomen, just under the skin, and in close proximity to the diaphragm. The plaintiff was, after receiving his injuries, examined by a number of physicians, who were called as witnesses, and who testified that they examined the plaintiff, and found him in great distress, having difficulty in taking a long breath; that the filling ■of his lungs seemed to draw upon the recti muscles, and apparently caused the patient to suffer pain in the locality of these muscles. They testified that there was no objective evidence, visible to the eye, upon the plaintiff’s person, showing that -these muscles had been injured, but that they ascertained, by manipulating the muscles, that they were rigid and tense, and that such a condition ■of the muscles was evidence that they were painful; that pressure upon them caused the patient to suffer pain, which was evidence, to their minds, that they had received an injury. Their testimony tended to show that the muscles were so located, near the exterior -of the body, that they could be readily and easily felt with the hand. They testified that, while a person could voluntarily make these muscles rigid, as the plaintiff’s appeared to be when they examined him, that they applied well-known tests, which they described, to ascertain if the plaintiff was, in fact, feigning, and that they learned, by such tests, that he was not voluntarily making his muscles tense. They testified that they were fully satisfied that the plaintiff had sustained an injury to these muscles, and they believed that was the cause of his disability. There was an entire absence of any fever, which was evidence, to their minds, there was no inflammation, and that the patient was not suffering from any disease like pleurisy or rheumatism, but, in their opinion, his condition was caused by a strain. The surgeons testified that they were aided, in locating the injuries, by information derived from the plaintiff.

Dr. Briggs testified: “ It is my opinion that Mr. Gale, when I treated him, was suffering from a muscular strain of the diaphragm and recti muscles. * * * If nothing had been said by Mr. Gale about over-lifting, from the symptoms I obtained, I should have supposed his case was a strain. If it were not for the information I got from him, I would have been puzzled to know what it was. In other words, without the explanation he gave, I would have found it hard to tell what it was. * * * Every -physician would be at sea, every day, were he to be debarred from receiving the statement of his patient, and so hei would be in a case like this.”

' Dr. Briggs evidently meant to be understood by this evidence that he would have had difficulty in locating the precise muscle that had been injured if he had not been aided by the statements of the patient;. but having ascertained the location of the pain by the statement of the patient he testified that he was convinced that the muscle had been injured by manipulating it.

Dr. Dann, a physician of twenty-six years’ practice, was called as a witness and testified: “ I manipulated those muscles and examined them with my fingers. I discovered this injury from such examination. * * * Such an injury would be likely to produce just what we found present in this case. * * * In all my examinations I never discovered any other malady or injury from which this man was suffering, except what I have stated. * * * I should say he was suffering from a strain of the muscle.”

“ There was nothing further on the person of this man to indicate injury than xhat, when the hand was placed on the abdomen, any pressure caused the muscles to be tense.” He testified that he could feel the rigidity of the muscles with his fingers, and that the rigid state of the muscles indicated, to his mind, that it had received an injury.

The condition of the policy as to external evidence of an in jury was inserted to protect the insurer against fraudulent claims. It is a reasonable and a proper provision, bnt it should have .a reasonable and practical construction. The evidence of the injury must be external, objective, but it must not necessarily be visible to the eye. If it can be ascertained by applying the hand upon the exterior of the body, such a test affords equal protection to the assured against fraudulent claims based upon simulated injuries as evidence that can •be seen with the eye. Information derived through the sense of feeling may be quite as satisfactory and convincing as that derived by sight.

The word “visible” is defined by Webster to mean “noticeable ; apparent; open; conspicuous.” In the Century Dictionary, as “ apparent; open; conspicuous; as a man with no visible means of support discernible in sight; obvious; manifest; clear ; distinct; plain; patent; unmistakeable.” An object that is noticeable, apparent to the touch, may be said to be visible.

The surgeons testified that a fracture of a rib would not be visible to the eye, but could be easily ascertained by the use of the hand.

An examination of the evidence has satisfied our minds that there was sufficient evidence tending to show external and visible indications on the body of the assured'of the injuries which he claimed to have sustained, so that a case was made which should have been submitted to the jury.

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

Dwight, P. J., and Macombeb, J., concurred.

Judgment and order of the County Court of Monroe county appealed from reversed and a new trial granted, with costs to abide the event.


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    JACOB BISSON and WIFE, Respondents, v. THE WEST SHORE RAILROAD COMPANY, Appellant, Impleaded with Others.

      Construction of a devise to a wife for life, and at her death to the testator’s heirs and, wife’s heirs, sha/re and, share alike.

    In an action brought for the partition of certain land it appeared that the common title of the parties was derived through a will which contained the following provision: “ To my said wife, Maria Bernhardina Wackerman, I give and bequeath all my real estate that I may die seized with for and during the term of her natural life, provided she, my said wife, shall remain my widow; and from and after her decease or marriage, which shall first happen, I give, devise and bequeath all my said real estate unto my heirs, and my said wife Maria Bern- ' hardina’s heirs, their heirs and assigns, forever, share and share alike. ”
    The wife survived the testator and did not remarry; their only child had died in infancy before the testator’s death, and neither the testator nor his wife left any descendants, or father or mother, but at the death of each of them there were living brothers and sisters of each, having families of children differing in numbers.

      Held, that the apparent intention of the testator was to make but one class of beneficiaries, composed of his own and of his wife’s heirs, and that they should share alike in the land; and that the devise being to a class, and the direction being that the estate should be divided equally, or share and share alike, the members of the class took per capita, there being nothing in the will showing a contrary intent, although they stood in different degrees of consanguinity to the testator.
    That as the wife was given a life estate in the land, and survived her husband, it was a case of the postponement of the vesting in possession of a devise to a class until a period subsequent to the death of the testator, and that, therefore, every person answering the description of a member of the class, at the time fixed for the division of the estate, that is, at the death of the wife, was entitled to a share in it.
    Appeal by the defendant, tlie West Shore Railroad Company, from a final judgment, entered in the Erie county clerk’s office on the 21st day of May, 1892; and also from the interlocutory judgment, entered in said clerk’s office October 19, 1891, as amended by an order entered therein on the 8th day of February, 1892.

      ■Charles A. Pooley, for the appellant.

      Joshua A. Burr, Jr., for the respondents.
   Lewis, J.:

This action, and an action by the same plaintiffs against Chauncey M. Depew and others, were brought for the partition of certain real property in the town of Cheektowaga, county of Erie. The same question arises in both actions. The same counsel represent the parties in both actions. Louis Wackerman, the common source of title, died, possessed of the premises in question, leaving a last will and testament bearing date the 27th day of June, 1861, in which he disposes of the property in controversy by the following clause :

“ To my said wife, Maria Bernhardina Wackerman, I give and bequeath all my real estate that I may die seized with, for and during the term of her natural life, provided she, my said wife, shall remain my widow, and from and after her decease or marriage, which shall first happen, I give, devise and bequeath all my said real estate unto my heirs and my said wife Maria Bernhardina’s heirs, their heirs and assigns forever, share and share alike.”

The testator died in the month of September, 1868. Thereafter, and on the 29th day of November, 1881, the said Maria Bernhardina died, never having married. There was never born to the said Louis and Maria any children except one son, who died in infancy, before the date of tlié death of his father. At the date of the death of Louis Wackerman, there was no person or persons answering the description of heirs-at-law of the said Louis Wackerman, who were also possible heirs-at-law of the said Maria Bernhardina Wackerman. Neither the said Louis Wackerman nor the said Maria left them surviving any child or children, nor descendants of deceased children, nor father, nor mother. At the date of the death of said Louis Wackerman, those persons who would then answer the description of his heirs-at-law were three brothers, seven nephews and nieces; four of said nephews and nieces were children of one of the brothers of the deceased; three nieces were children of another deceased brother. Besides these, he left no other heirs-at-law. At the date of the death of the testator, those persons who would, at that time, have answered the description of heirs-at-law of his wife, had she at that time died intestate, were three nephews and three nieces, who were children of a deceased brother; a niece, who was the child of another deceased brother of the said Maria, and whose name was Catharine Eltman, and two nephews and two nieces, who were children of a deceased sister of the said Maria. Intermediate the time of the death of Louis Wackerman, and the death of his widow, various changes, by death and otherwise, occurred in the families of the brothers and sisters of the testator, and the families of the brothers and sister of Maria Bernhardina. But, from the view we have taken of the question involved, it is not important that the details of these changes should be stated.

Had the testator died intestate, his heirs-at-law, at the time of his death, would have been ten in number, representing five different families or stocks. At the time of the death of his wife, they would have been fourteen in number, representing four stocks. One of his brothers, during this period, having died intestate without descendants; one of his nieces had died, leaving four children. The only change that took place, during this period, in the heirs of Mrs. Wackerman, was that caused by the death of a niece, who died intestate, leaving her surviving six children. Had Maria Bernhardina died intestate, her lieirs-at-law, at the time of her death, would have been sixteen in number, representing three stocks. Prior to the commencement of these actions, the heirs of Louis Wackerman and Catharine Eltman, who represented one of the three stocks of the heirs of Maria Bernhardina, conveyed all of their interests in a portion of the premises to the defendant, the West Shore Railroad Company, and they conveyed all their interests in the remaining portion of the premises, to the defendant, Chauncey M. Hepew.

The actions were referred to a referee, to hear and determine, and he found, as 'one of his conclusions of law: “ That under the last will and testament of the said Louis Wackerman, deceased, all those persons who, at the date of the termination of the particular estate thereby granted, to wit, upon the death of the said Maria Bernhardina Wackerman, his wife, would answer the description of heirs-at-law, either of the said Louis Wackerman or of the said Maria Bernhardina Wackerman, took an undivided interest in the land, as members of the same class, per capita, and not per stirpesP

The plaintiff is one of the heirs-at-law of Mrs. Wackerman. The appellants contend that the referee should have found that, under said will, one undivided half-part of the premises of which Louis Wackerman died seized, became vested per stirpes, and not, per capita, in the heirs of said Louis Wackerman, and the other undivided half, in like manner, in the heirs of his wife, and this presents the question in controversy between the parties.

The language of the bequest is, “ I give, devise and bequeath all of my said real estate unto my heirs, and my said wife, Maria Bernhardina’s heirs, their heirs and assigns forever, share and share alike.” We think the testator intended to make but one class composed of his own and of his wife’s heirs, and intended they should share alike in the premises. The beneficiaries had equal claims, so far as appears, upon the testator’s bounty, and the bounty of his wife. He clearly intended that his wife’s heirs should participate equally with his own in the property. As we have seen, the families of the relatives of the testator and his wife were not •composed of equal numbers of persons. Catharine Eltman was the sole representative of one of the families of Mrs. Wackerman’s relatives; another family was composed of six persons. It is not at all probable that the testator intended that Catharine should receive as much as all of the six children of another family. Like illustrations appear in the families composing his own heirs. No distinction, apparently, was attempted to be made between them. His and his wife’s heirs are placed upon the same basis, and are treated alike. This construction accords with the language of the will, and gives effect, we think, to the evident intention of the testator. This being a devise to a class, and the direction being that the estate shall be divided equally, or share and share alike, the members of the class take per capita, there being nothing in the will showing a contrary intent. And this is so, even if the devisees stand in different degrees of consanguinity to the testator. (Myres v. Myres 23 How. Pr., 410; Stevenson v. Lesley, 70 N. Y., 512; In re Verplanck 91 id., 439; Graves v. Graves, 55 Hun, 58; this case was affirmed in the Court of Appeals, 126 N. Y., 636.)

By this will, Mrs. Wackerman was given a life estate in the premises. She survived her husband. It was a case, therefore, of the postponement of the vesting in possession of a devise made to a class until a period subsequent to the death of the testator. In such cases, every person answering the description of a member of the class at the time fixed for the division of the estate will be entitled to a share in it. (Teed v. Morton, 60 N. Y., 506; Stevenson v. Lesley, supra.)

Tliis rule was adopted by the referee in his report. ¥e have examined the authorities referred to in the appellant’s brief and think they fail to sustain their contention.

The judgment appealed from should be affirmed, with costs, against the appellant, and the same disposition should be made of the case of the plaintiffs against Chauncey M. Depew and others.

Dwigi-it, P. J., and Maoomber, J., concurred.

Judgment appealed from affirmed, with costs, payable by the appellants.