author: Wabd, J.:

text:
    George F. Tillotson, Appellant, v. Alvin E. Nye and John V. Hartter, Respondents.

      Complaint stating no ccmse of action, dismissal of — compound interest —defense of usury.

    Where a complaint fails to allege a cause of action a motion, to dismiss the same, made on the opening of the trial, should he granted.
    "When a borrower has compounded the interest, a promise by him to pay such compound interest is valid and binding- if supported by a consideration.
    If the defense of usury exists to a mortgage such defense should be interposed in the action brought to foreclose the same.
    Appeal by the plaintiff, George F. Tillotson, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the. county of IVIonroe on the 20th day of December, 1894, upon the decision of the court rendered at the IVIonroe Equity Term, dismissing the • plaintiff’s complaint, with notice of an intention to bring up for review upon such appeal said judgment, and an order made at the IVIonroe Equity Term on the 9th day of December, 1894, and entered in said clerk’s office dismissing the complaint.
    The action was brought to obtain an adjudication that certain mortgages made by the plaintiff to the defendant Alvin E. Nye be set aside on the ground that they were usurious.

      W. E. Edmonds, for the appellant.

      W. A. Sutherland, for the respondents.
   Wabd, J.:

The judgment in this case dismissed the complaint “on the opening,” with costs. What the opening was does not appear in the papers before us, but the counsel seemed to assume upon the argument that the complaint was dismissed because it did not allege a cause of action, and, if it did not, the appellant’s counsel admitted the judgment should be sustained. In such a case a-motion to dismiss the complaint on the opening is proper. (Sheridan v. Jackson, 72 N. Y. 170.)

The complaint set forth the giving of three mortgages; the second mortgage embraced certain items of interest that had accrued on the first mortgage with the interest computed on the accrued interest, or what is usually termed compound interest.

Upon the execution of the second mortgage the first mortgage was satisfied and discharged.

The third mortgage contained, with other considerations, an amount of compound interest which was computed on the accrued interest of the second mortgage. Upon the last two mortgages an action of foreclosure was instituted in the County Court of IVIonroe county, in which the plaintiff was made a party. lie did not defend the action, but attended the sale and forbade it.

Compounding the interest and promising to pay it by the borrower is valid and binding if supported by a consideration. (Young v. Hill, 67 N. Y. 162.)

The complaint shows a consideration for each mortgage. The ground of this action is that the mortgages are void for usury on account of the compound interest inserted therein and should be set aside, but the complaint does not allege any fact which would constitute usury or make the mortgages void. Besides, if the defense of usury existed to these mortgages it should have been interposed in the action in which the mortgages were foreclosed. (Bartholomew v. Yaw, 9 Paige, 165; Moses v. McDivitt, 2 Abb. N. C. 47; Thompson v. Berry, 3 Johns. Ch. *395; affd., 17 Johns. 436; Vilas v. Jones, 1 N. Y. 274.)

If the foreclosure had been defeated for usury in the mortgages the judgment in that action would have amounted to the destruction of the mortgages and been available as a defense whenever an attempt should be made to enforce them.

The judgment should be affirmed, with costs.

Lewis, Bead ley and "WerNEr, JJ., concurred.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Ward, J.:

license: Public Domain

text:
    Jeannie T. Hard, Appellant, v. Charles O. Ashley and Others, Respondents.

      Lost will — may he proved by a single witness — not by estoppel — its existence never assumed — presumption of its destruction animo revoeandi — burden of proof.

    The proof of a lost -will is necessarily secondary, and the law accepts the best evidence that the nature of the case admits of as to its valid execution and contents.
    In an action brought to partition the property of a decedent among his heirs, where the defendants claim under an alleged will of the deceased which deprives the plaintiff of any interest in the property, they may establish the will, if it be lost, by the -testimony of a single credible witness, but they must show that the will was executed with all the formalities required by the statute and that the testator was of sound mind and under no restraint.
    The proof needed to establish a lost will or to-show its contents by parol evidence cannot be worked out by way of estoppel, based on the sustained objection of the opposing party to evidence offered in regard to the same.
    The destruction of the will of another person without authority is a crime, and a party will not be convicted of such an act upon suspicion or surmise, but only upon substantial proof thereof. The law never assumes a will to have existence in the absence of proof of that fact.

      If it be established -upon the trial of an action that a decedent made a will, such as the statute permitted him to make in order to dispose of his property, and that it was last seen in the possession and under the control of the decedent, and at his death, after proper search, no will can be found, the presumption is that the will was destroyed by the testator animo rewcandi, and this presumption stands in the absence of positive proof to the contrary.
    He who seeks to establish a lost or destroyed will assumes the burden of overcoming this presumption by adequate proof. It is not sufficient for him to show that persons interested to establish intestacy had an opportunity to destroy the will; he must go further and show by the facts and circumstances that the will was actually and fraudulently destroyed.
    Appeal by the plaintiff, Jeannie T. Hard, from a judgment of the Comity Court of Monroe County in favor of the defendants, entered in the office of the clerk of the county of Monroe on the 22d day of October, 1894, upon the verdict of a jury dismissing the plaintiff’s complaint upon the merits, and also from an order entered in said clerk’s office on the 31st day of July, 1894, denying the plaintiff’s motion for a new trial made upon the minutes.

      William A. Sutherland, for the appellant.

      John A. Barhite, for the respondents.
   Ward, J.:

This action was instituted in the Monroe County Court to partition certain premises owned by Eliza Ashley of Rochester, situate in that city. Eliza Ashley died on the Utli of April, 1893, and the plaintiff and the defendants, Charles 0. Ashley and John H. Acker, were her only heirs at law. The issues made by the pleadings were whether Eliza Ashley died intestate. The defendants claim under an alleged will of the deceased which deprived the plaintiff of any interest in the property. At the close of the evidence the plaintiff’s counsel moved for the direction of a verdict for the plaintiff, which the court denied, and the jury rendered a verdict for the defendants. Hpon the pleadings and conceded facts at the trial the plaintiff was entitled to a verdict unless a will was established made by the deceased, preventing. There was no such will established upon the trial. A witness was examined on defendants’ behalf, who testified, in substance, that he drew a will for the deceased from a memorandum given him ; that he signed the will as a witness at her request; that his father was one of the witnesses; that the will was read over to the deceased and she signed it; other witnesses referred to the fact that a will was prepared, and that they had seen a will, and there was talk about a will in which the deceased participated, but the proof came far short of establishing an instrument that would devise real estate, executed and published according to the forms required by the statute. It is true that proof of a lost will is necessarily secondary, and the law accepts the best evidence that the nature of the case admits of as to its valid execution and contents, and in such a case as this the defense may establish the will by a single credible witness (Harris v. Harris et al., 26 N. Y. 433), yet it must be shown that the will was executed with all the formalities required by the statute, and that the testator was of sound mind and under no restraint.

There was an entire absence of proof as to the contents of the assumed will, nothing whatever to show that the plaintiff’s apparent title as an heir to one-third of the property sought to be partitioned has been impaired or destroyed. The case, therefore, of the defendants was not established, and it was error not to direct a verdict for the plaintiff. The defendants seek to excuse this omission by alleging that the proof of the execution of this will and its contents was excluded by the court upon the plaintiff’s objection, and seem to assume that the plaintiff is estopped thereby, and deprived of the benefit of the objection of the want of such testimony here. The court sustained the objection to certain evidence offered by the defendants, which, if admitted in connection with sufficient other evidence (which the defendants did not offer to show), might tend to establish the will, but the trial court regarded the objection as well taken, and ruled in favor of the plaintiff, and the . soundness of that ruling is not before us for consideration. It would be a novel proposition indeed that the needed proof to establish a will or prove its contents by parol could be worked out by way of estoppel,founded on the sustained objection of the opposing party; but assuming that it had been established, that the decedent had made in her lifetime a will excluding the plaintiff from all rights in the property, a further difficulty is presented which has been earnestly pressed upon our attention.

Upon the death of Mrs. Ashley and after thorough search made no will was found. Tlie last we learn of this alleged will is from the witness, Edward Webster, who says he had drawn a will for tlie deceased before, and in her last sickness she sent for him about a week before she died. She was confined to her room, and he adds: “ She called a young lady to get the will and told her where it was and she went and brought it in. I don’t know anything as to where it -was except from something they said ; I think she told the girl that it was in the bureau. Mrs. Ashley was up stairs at that time ; this bureau was in another room, but I don’t know whether it was up stairs or not. The girl returned with the will and I examined it.” The will was left with the deceased or under her control. This was the last seen of the will so far as the testimony goes. The plaintiff was the granddaughter of the deceased, and she with one or two other relatives of the deceased took care of her for several weeks previous to her death. The defendant Charles 0. Ashley, and his daughter and other members of the family, were in attendance more or less upon the deceased during that time. Evidence was given by the defendants tending to show that the deceased had some objection to the plaintiff being there at that time, and that the plaintiff had made expressions of disrespect towards the deceased and had written some letters to the stepmother of the plaintiff ridiculing the deceased, and the deceased had said that the plaintiff was there only for the loaves and fishes, but she would be disappointed. The plaintiff’s stepmother was also in attendance upon the deceased, having gone there before the plaintiff, and the plaintiff had expressed in her letters to this stepmother that she hoped that she would get well paid or get the property of the deceased for taking care of her. It appeared also from the defendants’ evidence that at one time, some time prior to the death of the deceased, what was called a will was seen in a family Bible that was in one of the rooms of the house. That was before the will was seen by "Webster as stated, and that at some time the plaintiff was seen reading this Bible, or looking through it, but it did not appear that the will was there at the time. The plaintiff was seen at one time looking through a book of poems, and the trial court charged the jury that there was evidence showing that the will had been seen in this book of poems. This statement was a misdirection by the court, there being no such evidence in the case. The plaintiff testified that she never saw the will. The same statement was made by the other witnesses who were in attendance upon the deceased. Several witnesses testified, uncontradicted, to seeing a letter from the deceased written in December, 1892, to the plaintiff, in which the deceased told the plaintiff if she would come and take care of her she could have what property she had; that she (the deceased) was sick and alone and had no one to do anything for her; that her son Charles (the defendant) was a brute; that he never came near her to do anything for her, and requested an answer. It appeared that after the death of Mrs. Ashley there was some talk of settlement between the parties, and the plaintiff proposed that her interest in the property should go to the defendant Charles for life' with reversion to herself. The witnesses on both sides, as is unfortunately the case in family controversies, exhibited bitterness toward each other and there was some contradiction as to the facts. Several witnesses spoke of a letter of instruction that the deceased had executed and had among her papers directed to her son Charles, stating ■what she wanted done with her property after her death. One witness who saw it described it as a package of yellow sheets, and this was to be-given to Charles in case the deceased did not live, otherwise it was to be destroyed. This was during her last illness. This letter of instructions was not found after her death. The deceased was ninety-one-years of age. Tier mind was clear and bright and there was no question but that her mental condition was good. Some evidence was. given touching her ability to leave her room after Webster’s visit, but it does not appear but that she could have reached her will and had control of it if she had so desired after Webster’s visit. The evidence did not disclose who the young lady was that brought the. will nor did it disclose any act on the part of the plaintiff pointing to the destruction of the will. Such a destruction would be a crime,, and a party is not to be convicted of such an act'upon suspicion or surmise, but only upon substantial evidence proving it.

It is elementary that the law never presumes a will in the absence of proof. If it be established that the decedent made a will such as. the statute permits to dispose of property, and it was last seen in the possession or under the control of the decedent, and at his death no-will can be found upon proper search, the presumption obtains that the will was destroyed by the testator animo revocandi. (In re Florence, 2 Bradf. 281; Idley v. Brown, 11 Wend. 227).

The law upon this subject is so. well stated in Collyer v. Collyer (110 N. Y. 180), in a case much like this in its leading features, that we cannot do better than to reproduce it here : “There is no direct proof that Mrs. Collyef destroyed her will; but the proof, that the will was not found after her death is sufficient proof that she destroyed it animo revoccmdi. "When a will previously executed cannot be found after the death of the testator there is a strong presumption that it was revoked by destruction by the testator, and this presumption stands in the place of positive proof. (Betts v. Jackson, 6 Wend. 173; Knapp v. Knapp, 10 N. Y. 276; Schultz v. Schultz, 35 id. 653; Hatch v. Sigman, 1 Demarest, 519.) He who seeks to establish a lost or destroyed will assumes the burden of overcoming this presumption by adequate proof. It is not sufficient for him to show that persons interested to establish intestacy had an opportunity to destroy the will. He must go further, and show' by facts and circumstances that the will was actually, fraudulently destroyed. In Loxley v. Jackson (3 Phill. Rep. 126) the will was last seen in a small box in the bedroom of the deceased, but was not found after her death, and it was held that the presumption of law w-as that the testatrix destroyed it cmimo revoccmdi; that the law did not presume fraud, and that the burden of proof was on the party claiming under the will. In Knapp v. Knapp (supra) it was held that proof that a will executed by a deceased person was said by him a month previous to his death to be in his possession in a certain desk at his house, that he was then very aged •and feeble, that his housekeeper was a daughter having an interest adverse to the will and that the same could not be found on proper search three days after his death, is not sufficient evidence of its ■existence at the testator’s death or of a fraudulent destruction in his lifetime, to authorize parol proof of its contents. The authorities •are uniform, and no further citations are needed.”

Within the rules thus laid down, from a careful examination of this evidence, it is doubtful whether there was sufficient evidence to justify the jury in holding that the plaintiff or any one else destroyed this will with a fraudulent intent or that it was lost by accident.

The deceased was capricious, as sick and aged people often are; ■she seemed inclined first to one of her relatives and then to another, ■and it might well be if she had made a will or given letters of instruction, that in a moment of perplexity or doubt as to just what she should do with her property, come to the conclusion to destroy all papers and let the law distribute it among her heirs.

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

Lewis, J., concurred; Bradley, J., concurred in the result; "WerNee, J., not sitting.

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


author: WARD, J.:

text:
    Joseph Lefrois, Respondent, v. The County of Monroe, Appellant.

      Nuisance — a trial by jury is a matter of right — ■new trial granted for the insufficiency of the da/mages — setting aside a verdict is discretiona/ry.

    In an action brought to abate a nuisance and to recover the damages occasioned thereby, a trial by jury is a matter of right.
    If the complaint in form asks for equitable relief against the continuance of the nuisance, the prayer for damages may be regarded as incidental thereto.
    As the existence of an alleged nuisance and the amount of damages caused thereby were, before the adoption of the Constitution, both inquired of by a jury, the constitutional guaranty of trial by jury applies to such an action as being one of the cases in which it had been theretofore used.
    Where a defendant, through the action of the plaintiff, is confronted in court by a claim for both equitable and legal relief, if the legal claim, embraces matters which, under the Constitution and the laws of the State of the New York, the defendant is entitled to have tried by a jury, he may insist upon it by taking the proper steps to have the issues settled, and he cannot be deprived of that right unless he has in some manner waived it.
    In actions of tort, where the damages are so largely in the discretion of the jury, the courts have been cautious in granting new trials, either for excess or for insufficiency of damages, for the reason that the jury is the judge, where there is evidence of a substantial character to support its verdict, of the weight of the evidence and the credibility of the witnesses; but where the trial court, with the jury, heard the witnesses and is familiar with all the proceedings of the trial, and has set aside the verdict, the appellate court will ordinarily sustain such order, even in cases of tort, if the trial court had before it sufficient evidence to justify such exercise of its discretion in the premises.
    Motions to set aside verdicts as contrary to evidence, as well as motions for new trials on the ground of newly-discovered evidence, are not governed by any well-definr;d rule, but depend in a great degree upon the peculiar circumstances in each case; they are addressed to the sound discretion of the court, and whether they should be granted or refused involves the inquiry whether substantial justice has been done, the court having in view solely the attainment of that end.
    Appeal by the defendant, The County of Monroe, from an order of the Supreme Court, made at the Monroe Circuit and entered in the office of the cleric of the county of Monroe on the 10th day of November, 1894, granting the plaintiff’s motion for a new trial made upon the minutes.

      John Desmend, for the appellant.

      J. A. Stull, for the respondent.
   WARD, J.:

The respondent, to whom we shall refer as the plaintiff, brought an action in this court in Monroe county and alleged in his complaint that he was the owner of about twenty-six acres of land in the vicinity of the city of Rochester, which he occupied as a dairy farm, through a portion of which ran a small natural stream that had supplied his premises and his stock with pure water, which had become contaminated and rendered useless by filth and excrement that had been placed in the stream by the defendant. The defendant had public buildings near the plaintiff’s premises, also an open field in which filth and deleterious matter had been deposited by the defendant, that, together with the polluted matter in the stream, had created offensive odor to the great discomfort and annoyance of the plaintiff and his family covering a period of six years, and thereby his property became greatly depreciated in value, and he claimed damages in a large amount, and prayed for an injunction restraining the defendant from the pollution of the stream and a continuation of the nuisance. Issue being joined, the cause was tided in October, 1894, and resulted in a verdict for the plaintiff for forty-five dollars and fifty-eight cents for damages before the action was commenced and four dollars and forty-two cents damages since the commencement of the action. The plaintiff obtained leave of the court upon the coming in of the verdict to entertain a motion upon the minutes to set aside the verdict under section 999 of the Code of Civil Procedure, among other tilings, because the verdict was for insufficient damages and contrary to the evidence. The learned trial court set aside the verdict and granted a new trial, without costs of the trial or of the motion to either party as against the other, on the ground “ that said verdict is for insufficient damages, and because verdict is contrary to the evidence and weight of evidence, and not supported by the evidence on the trial.”

The respondent first meets us with the objection that the order granting the new trial is not appealable, as it is in express terms prohibited by subdivision 2 of section 134/7 of the Code, which defines appealable orders and permits an appeal from an order where it grants or refuses a new trial, “ except that where specific questions of fact arising upon the issues in an action triable by the court have been tried by a jury, pursuant to an order for that purpose as prescribed in section nine hundred and seventy-one of this act, an appeal cannot be taken from an order granting or refusing a new trial upon the merits.”

Turning to section 971 we find that that applies to a case where a party is not entitled as of right to a trial by jury, but to equity actions, where questions of fact may, in the discretion of the court, upon application by either party, be directed to be tried by a jury.

The plaintiff’s contention is that this is an equity action simply, in which the court may order issues to be tried for its information and guidance in disposing of the questions arising in the case and granting the equitable relief sought, while the appellant claims that, although the plaintiff has sought equitable relief in the action, it is substantially an action for a nuisance, and the defendant was entitled to a jury trial under section 968 of the Code, which directs that such an action shall be triable by a jury, or, if not under that section, then under section 970 of the Code, which provides that where a party Is entitled by the Constitution, or by express provision of law, to a trial by jury of one or more issues of fact in an action not specified in section 968, he may apply upon notice to the court for an order directing all questions arising upon those issues to be stated for trial, and, when those issues are stated, the subsequent proceedings are the same as in other cases where issues are stated, “except that ■the finding of the jury upon such questions so stated is conclusive in the action unless the verdict is set aside or a new trial is granted.”

The issues tried by the jury were stipulated between the parties and an order was entered thereon to the effect that the issues involving the liability of the defendant and the question of damages be tried by a jury. The jury found that the. defendant was liable as for the nuisance complained of, and fixed the damages as above stated. The question, therefore, is whether these issues were such as the defendant had a right to have tried by a jury under the Constitution or the laws of the State. If so the ordér was appealable.

In Hudson v. Caryl (44 N. Y. 553) it was held in an action to abate a nuisance and recover damages occasioned thereby, that trial by jury is a matter of right, even if the complaint is in form for equitable relief, against the continuance of the nuisance, and the prayer for damages may be regarded as incidental thereto, yet as the existence of an alleged nuisance and the amount of damages were both inquired of by a jury before the adoption of the Constitution, the constitutional guaranty of trial by jury applies to such actions as one of the cases in which it had been theretofore used. And see Conderman v. Conderman (44 Hun, 181).

This right of trial by jury may be waived, but the defendant in this case has done nothing to waive that right. The plaintiff cites Cogswell v. N. Y., N. H. & H. R. R. Co. (105 N. Y. 319). That was a case where the plaintiff in an action of nuisance had incorporated a demand for both equitable and legal relief, and afterwards sought a trial by jury of the legal issues. The court held that the plaintiff had waived his right to a trial by jury by incorporating a demand for equitable relief in his complaint, but quoted with approval Hudson v. Caryl (supra); and the rule seems to be well established that where a defendant, through the action of the plaintiff, is confronted in court by a claim for both equitable and legal relief, if the legal claim embraces matters that, under the Constitution or laws of the State, the defendant is entitled to have tried by a jury, he may insist upon it by taking the proper steps to have issues settled, and he cannot be deprived of that right unless he lias in some manner waived it in the action. (Lynch v. Met. Elevated R. Co., 129 N. Y. 278.)

It is not in the power of a plaintiff to deprive the defendant of tlie right of a jury trial oil issues that entitle him to it by incorporating in the complaint other issues of an equitable character and thereon demanding equitable relief.

The case of Dean v. Benn (69 Hun, 519; aff'd. without opinion, 142 N. Y. 684) does not conflict with this view. That case wknt off on the question of waiver mainly. The question here presented was not before the court in that case and it does not aid us.

We have reached the conclusion that this order -was appealable. The evidence in the case, though voluminous and delivered from the lips of many witnesses, seems to establish beyond question the fact that the acts of the defendant complained of constituted a serious nuisance to the plaintiff and damage to his property. The appellant claims that we should set the order granting a new trial aside because the evidence was conflicting, and there was evidence to justify the jury in their verdict.

The cases bearing upon this subject resolve themselves into three classes: First, where the verdict is attacked as excessive in damages, usually in cases of tort where damages are awarded for negligence, and the trial court refuses to set the verdict aside and the appellate court is asked to review such refusal. Second, in actions of contract where the damages sought to be recovered were capable of being rendered certain by computation and where it was apparent, from the facts established, that the jury had erred in arriving at the damages, as in Algeo v. Duncan (39 N. Y. 313); McDonald v. Walter (40 id. 551), and where the trial court had granted a new trial.

The third class are actions of tort such as this where a new trial had been granted by the trial court usually upon the minutes. In actions of tort, where the damages are so largely in the discretion of the jury, the courts have been cautious in granting new trials either for excess or insufficiency of damages for the reason that the jury is the judge, where there is evidence to support its verdict of a substantial character, of the weight of the evidence and the credibility of the witnesses; but where the trial court has, with the jury, heard the witnesses and is familiar with all the proceedings of the trial and has set aside the- verdict, the appellate courts have sustained such orders upon the principle well set forth in Barrett v. The Third Avenue Railroad Co. (45 N. Y. 632), where the court says: “ Motions to set aside verdicts as contrary to evidence, as well as motions for a new trial upon the ground of newly discovered evidence, are not governed by any well defined rules, but depend in a great degree upon the peculiar circumstances of each case. They are addressed to the sound discretion of the court, and whether they should be granted or refused involves the inquiry whether substantial justice has been done, the court having in view solely the attainment of that end.” To the same effect see Glassford v. Lewis (82 Hun, 46) and Young v. Stone (28 N. Y. Supp. 881; 77 Hun, 395), and cases cited. In Kelly v. The City of Rochester (15 N. Y. Supp. 29), where the plaintiff recovered a verdict for fifteen dollars for personal injuries, this department sustained the Monroe Circuit in an order setting aside the verdict for insufficiency of damages. Judge Dwight says: “ The verdict of the jury found both the issues tried in favor of plaintiff (viz., the injuries and the defendant’s negligence), and that finding entitled him to full compensation for the injury which he had sustained. For that purpose the verdict was grossly inadequate, and must have been the result of unworthy and improper considerations prevailing with the jury.”

In O’Shea v. McLear (15 N. Y. Civ. Proc. Rep. 69) an action had been brought under the Civil Damage Act for damages resulting from the death of the plaintiff’s husband. A small verdict was given, which the trial court set aside for insufficient damages, and the court said that the jury having reached the conclusion that the plaintiff had established a cause of action, it was their duty to award to her a reasonable compensation for the injuries which she had sustained.

In Peck v. Fonda, J. & G. R. R. Co. (6 N. Y. Supp. 379), where a verdict in an action for damages occasioned to plaintiff’s land by the overflowing of a creek was set aside as against the weight of evidence, the General Term of the third department sustained the order and said : “"We are of the opinion that the justice before whom a cause is tried is generally better capable of judging in regard to the weight of evidence than an appellate court can be.”

These cases establish that the appellate court sustains orders of this character even in cases of tort, where the trial court had before it sufficient evidence to appeal to and justify such exercise of its discretion in the premises.

A careful review of the evidence in this case will not justify us in dissenting from the learned trial court as to the order made, and it should be affirmed, without costs of the appeal to either party.

Lewis and Bbadley, JJ., concurred: Dwight, P. J., not voting.

Order affirmed.


text:
    Arthur J. Baldwin, Respondent, v. Maria Golde and Others, Appellants.

      Possession of land by a son, dwelling with, his father who holds the recwd title— not constructive notice as to oral agreements between them relating to the land — deed of a person of unsound mind — burden of proof — action of ejectment — defense that the plaintiff's grantor was a lunatic — who may interpose it.

    Where a son lives in his father’s family, and to all appearances bears only such relation to the property upon which the family resides as a son would have who had not departed from the family hearth, the father having the record title to the property, the inference is that the son’s possession is under and in subordination to the father’s title, and a purchaser of the property from the father is not charged with constructive notice, by reason of the residence of the son upon such property, of any verbal agreement made between the father and son in respect thereto.
    The deed or contract of a lunatic or person of unsound mind, made before inquisition of lunacy found, is not void where it is executed for a valuable consideration received by the lunatic and the other party to the contract or conveyance has no knowledge or notice of his mental infirmities.
    Where an action is brought to set aside the deed or contract of an alleged lunatic, the burden of proof may be one way or the other according to the circumstances, but ordinarily the burden rests upon those who allege the unsoundness of mind to establish the facts necessary to avoid the instrument, and the want of equity in the transaction, and notice to the party dealing with the lunatic of his mental condition.
    No transaction with a lunatic is void, unless it is void as to both parties, so that either may set it aside.
    In an action of ejectment, where the wife and children of the plaintiff’s grantor occupied the premises, the possession of which it was sought to recover, the grantor’s wife and children, if he be living, are strangers to his title and cannot allege as a defense to the action that he was a lunatic at the time of the giving to the plaintiff of a deed of the property.

      Appeal by tlie defendants, Maria Golde and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the comity of Erie on the 12th day of May, 1894, upon the verdict of a jury rendered by direction of the court after a trial at the Erie Circuit adjudging the plaintiff to be the owner in fee of certain real estate and awarding him the possession thereof.

      W. B. Swnson, for the appellants.

      Leona/rd D. Baldwin, for the respondent.
   Wabd, J.:

The premises sought to be recovered by the plaintiff in this action were village lots 71, 72 and 73, and parts of 69 and 70, in the village of Tonawanda, and also lot 74. All, except lot 74, had been conveyed by the owner in possession in 1884 to Christian Golde, the husband of the defendant Maria, and the father of Cornelius, Herman and Thomas Golde, the other defendants. Lot 74, in 1885,' had been conveyed by the owner to Christian Golde and Maria, his wife, as tenants by the entirety. Christian went into possession of all these lots under the deeds, and continued such possession until January, 1893, when he sold and conveyed the premises by warranty deed to the plaintiff for a valuable consideration of $965. The wife and sons of Golde occupied the premises with him as a part of his family. Christian Golde, after the sale, departed from the State, leaving the family in possession of the premises. The plaintiff demanded possession of them and was refused, and brought this action to recover the premises. The defendants all answered, alleging, first, that the defendant Cornelius Golde had constructed a house and barn upon the lots after his father had purchased them and before the deed to the plaintiff, at the cost of about $1,200, under a verbal arrangement with his father that the father should execute a mortgage to him for the cost of the buildings, and until he did so Cornelius was to live on the promises with his father free of rent, which should offset the interest that would accrue on the cost of the buildings; that the plaintiff knew of this arrangement at the time, of his purchase. The defendants further answered that Christian Golde and the plaintiff had entered into a fraudulent. arrangement -whereby the plaintiff was to purchase the premises for less than they were worth, in order to defraud Cornelius Golde of his rights in the premises, and that the said Christian Golde, at the time of the execution and delivery of the deed to the plaintiff, “ ivas of unsound mind, was mentally incompetent to transact business and to deed real property, and was so far deprived of his reason and understanding as to be altogether unfit to manage his affairs; ” and that the plaintiff at that time was aware of such condition of Christian Golde, and procured him to execute the deed to the plaintiff for a consideration much less than the actual value, with the intent to defraud such Christian Golde and said Cornelius Golde of their respective rights and interests in said premises.”

TJpon the trial the plaintiff gave testimony tending to show that he was a purchaser in good faith and for value, and had no notice of any claim or equity of Cornelius Golde or any knowledge or notice of any unsoundness of mind of Christian Golde, and that he was protected by the Recording Acts in his title.

The defendants offered to show the contract as to the buildings and the verbal mortgage alleged in the answer between Christian Golde and Cornelius, without offering to show any knowledge in or notice to the plaintiff of the same. This evidence was excluded under objections made, and the defendants excepted, and then the defendants offered to show “that at the time of the execution of tke deed of Christian Golde to Arthur J. Baldwin (the plaintiff) that he was of unsound mind and incompetent to transact business or to give the deed in question.” This was objected to and excluded and the defendants excepted. There was no offer by the defendants to prove, or proof given of, any knowledge in or notice to the plaintiff of the matters embraced in this offer.

The evidence was closed and, each party asked the court for a direction of a verdict in his favor respectively. The court dismissed the complaint as to lot Y4 and directed a verdict for-the plaintiff as to the other lots.

The questions before us come here upon the two exceptions taken by the defendants. The first exception as to the equitable claim of Cornelius Golde is clearly untenable. It was a private arrangement between the father and the son, of which the plaintiff had no notice or knowledge. The counsel for the appellants claims that Cornelius Golde was in sucli possession of the premises as gave constructive notice of his rights. He was living in his father’s family, and to all appearances bore only such relations to the property as a son in the family would have who had not departed from the family hearth. The father had the record title, and the inference was that the son's possession was under him and in subordination to that title. (Pope v. Allen, 90 N. Y. 298.)

The other exception is more formidable and involves a question about which there is confusion in the authorities and which has been much considered and discussed in the courts of this State. The defendants were strangers to the title of Christian Golde (although his wife and children). Until his decease they had no more right to the possession of the premises as against this grantee than any other pei’son who might enter upon the premises wrongfully and hold them against the plaintiff, and the appellants’ counsel here takes the bold position that any person in possession of real estate, even if such possession be wrongful, may hold it against the grantee of one having lawful and record title, by showing the insanity of his grantor as a fact upon the trial of an action brought by the grantee who purchases in good faith and for value, and without notice of the insanity, and he cites in support of this position Van Deusen v. Sweet (51 N. Y. 378). That was a case where a parent had deeded to his son-in-law, without consideration, certain premises, and had also devised the same premises by will to his daughter. The daughter sued to recover the premises, alleging the deed void to the son-in-law upon the ground of the insanity of the father, and the court held that a deed by one non compos mentis is absolutely void, and where a defendant in an action to recover the possession of real property claims under such a deed the fact of the incapacity of the grantor may be shown by the plaintiff to defeat such claim, although no fraud is alleged and such incapacities have not been legally or judicially determined at the time. This decision was made by the Commission of Appeals, and it will be observed that the parties to the action had notice of the mental condition of the father, and neither of them .was a purchaser for value. He also cites Goodyear v. Adams (5 N. Y. Supp. 275). That was a family controversy, where one party claimed under a deed and another under a will, where the mental condition of the grantor was known to the parties and where there was an allegation of fraud as to the obtaining of the deed. The deed was held void in that case, but the court says : It was not shown that the deed was for the benefit of Joshua (the grantor), or was taken in good faith, or for adequate consideration,” but obtained by fraud. ’

He cites also Aldrich v. Bailey (132 N. Y. 85). That case came before the court on a submission of facts as to whether a contract was void for insanity of one of the contracting parties. In referring to the case of Van Deusen v. Sweet (supra) Judge Haight says: “ Assuming, for the purposes of this case, that the rule is there correctly stated, and that a deed would be not merely voidable, but absolutely void, when executed by an insane person, yet under the rule in that case a deed is absolutely void only when it appears that the person executing it was at the time so deprived of his mental faculties as to be wholly, absolutely and completely unable to understand or comprehend the nature of the transaction.”

The judge further says (in speaking of the case before him): No allegation appears as to the extent to which the mind was unsound, or as to whether it was so affected as to render him wholly and absolutely incompetent to comprehend and understand the nature of the transaction.”

Judged by this standard the answer of the defendants falls short of alleging such a mental condition in Christian Golde as would make his deed void. That answer alleges that he is capable of committing a fraud upon his son with the plaintiff, and at the same time charges him with incapacity to carry out the fraud. The offer of proof under the answer we are now considering falls short of this rigid standard, and we might repose upon this distinction and sustain' the ruling of the trial court without further investigation, but we will consider a few other cases and authorities iand assert what we regard to be the true rule established by them. But before doing so we will notice another case cited by the appellants. (Valentine v. Richardt (3 N. Y. Supp. 906), also reported as Valentine v. Lunt (51 Hun, 544). In that case Mrs. Yalentine, being the owner of considerable real estate and an invalid, employed a physician, one Eichardt, who obtained such influence over her that he established illicit relations with her and by most villainous contrivances and fraud induced her to deed to him her real estate, and after recording the deed bor-rowecl considerable money on tbe strength of his record title of innocent persons, and executed mortgages to them. Upon the death of Mrs. Valentine her son brought an action in equity to set aside the mortgages and deed (making the mortgagees parties), alleging the fraudulent methods of Bichardt, and that his mother when she executed the deed was of unsound mind and incompetent to manage herself or her affairs. The General Term of the second department held the deed and mortgages void as against even the innocent mortgagees. Upon appeal to the Court of Appeals this judgment was reversed (115 N. Y. 496), the court holding that the innocent mortgagees should be protected notwithstanding the fact of the mental condition of Mrs. Valentine and fraud practiced upon her.

Blackstone says (2 Com. 291) that “idiots and persons of nonsane memory, infants and persons under duress, are not totally disabled either to convey or purchase, but sub modo only, for their conveyances and purchases are voidable, but not actually void.”

Kent says (2 Com. 451): “ The general rule is that saidty is to be presumed until the contrary be proved, and, therefore, by the common law, a deed made by a person non compos is voidable only and not void.”

In Matter of Richard Beckwith, a Lunatic (3 Hun, 443), the General Term of the fourth department says : “ A contract with a person not known to be of unsound mind, and who has not been found, upon a commission de lunático inquirendo, to be insane, may be sustained if it shall be proved to have been fairly made and without advantage being takeii of the lunatic.” In Fitzhugh, Committee, etc., v. Wilcox, Judge JoimsoN, speaking for the General Term of the seventh district (12 Barb. 237), says, in a case where an alleged lunatic had been a contracting party: “ The distinction between the void and voidable contracts of a lunatic does not appear to be entirely settled upon authority, but I apprehend it will be found to be substantially this, that the deeds and contracts of a lunatic made before office found are not void but voidable, while those made afterwards are absolutely void.”

In Riley v. The Albany Savings Bank (36 Hun, 519), where it was alleged that an insane person had deposited money in á bank, the court says, at page 519: “An executed contract, made in the usual course of business and founded upon a valuable consideration, cannot bo set aside by one of tlio parties thereto, nor-by his representatives after his death, on the ground of his unsounduess of mind when he has received the benefit stipulated in the contract and the other party has no notice of his incapacity and was guilty of no fraud or imposition.” (Citing Mutual Life Insurance Company v. Hunt, 79 N. Y. 541, and other cases.) This case was affirmed, without opinion, in 103 N. Y. 669.

Many other cases might be cited to the same effect, and the rule they establish is this : That the deed or contract of a lunatic or person of unsound mind, made before inquisition of lunacy found, is not void where it is executed upon a valuable consideration received by the lunatic and the other party to the contract or conveyance had no knowledge or notice of his mental infirmities.

The burden of proof may be one way or the other in such cases according to the circumstances, but ordinarily the burden is upon those who allege the unsoundness of mind to establish the facts to avoid the instrument, and the want of equity in the transaction, and notice to the party dealing with the lunatic of his mental condition.

No transaction with a lunatic is void unless it is void as to both parties, so that either could set it aside. No one would claim that the plaintiff in the case before us could assert the absolute invalidity of the deed he received and ask for a restoration of the consideration he has advanced for it. The deed, therefore, at best being only voidable and the offer of proof as to the grantor’s mental condition not being accompanied by any proof or offer to prove notice to the plaintiff, the trial court was right in rejecting the evidence and the exception was not well taken.

The respondent makes a point that the defendants in this case are strangers to the title of Christian Golde and cannot litigate here the question of his sanity. This position is supported both by reason and authority. It must be remembered that Christian Golde was not dead at the time of the trial, so that any rights that he may have had did not devolve upon his widow and children.

In Ingraham v. Baldwin (9 N. Y. 45) evidence to show that a mortgagor, at the time he executed the mortgage, was a lunatic was offered against a mortgagee in good faith and without notice. The evidence was excluded, and the Court of Appeals says that the mortgage was only to be avoided at the election of the lunatic, or his personal representatives or those claiming some interest under him in the premises; that a lunatic was not absolutely disqualified from making a contract, and the court concludes : “ Again, there was no privity between the defendant and the mortgagor shown or proposed to be shown. * * * A stranger would have no more right to insist upon the insanity of the mortgagor to avoid a security executed by him than upon his infancy.” The same principle is asserted in Jackson ex dem. Merritt v. Gumaer (2 Cow. 552).

The questions of fact in the case are all found with the plaintiff by the court, as both parties asked for a direction of a verdict.

The judgment should be affirmed.

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

Judgment affirmed.


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    The People of the State of New York ex rel. The Western New York and Pennsylvania Railroad Company and Samuel G. De Coursey, its Receiver, v. Mahlon B. Adams and Others, Composing the Common Council of the City of Rochester, and Others.

      Designation by a common council of the land to be taxed for a contemplated improvement, when invalid— certiorari to review an assessment, when not affected by the transmission of an assessment roll.

    Where, after a fair examination by the common council of a city, in a matter within its jurisdiction, of the various properties that might be benefited by a contemplated improvement, it designates certain ones to be taxed and relieves others, its conclusion, if not fraudulent, must stand; but where the common council, in effect, makes no such examination and casts the burden upon a single piece of property with the purpose of enforcing some extraneous right or duty claimed to exist, but in no way connected with or enforeible by the statutory proceedings in which it is engaged, and excludes other properties, which from the facts and surroundings must of necessity be benefited by the improvement, it proceeds upon wrong premises, and its proceedings and the assessment growing out of them are invalid.
    It is only when city officers have jurisdiction of the subject-matter and conduct their proceedings in a manner consistent with the statute that their proceedings are conclusive.
    Chapter 326 of the Laws of 1880, like all other statutes, should receive a reasonable construction, and it is not .intended thereby to impose the duty upon the railroad company therein named, in constructing crossings over the streets of the city of Rochester, of building structures that will withstand the enormous weight of the cars of an electric street railway having a weight greatly in excess of that of the vehicles that would ordinarily pass over the streets of such city.
    Although an assessment roll passes into the hands of the treasurer of the city of Rochester, before a certiorari is obtained to review the same, the common council of such city and its assessors may be compelled to reverse their action if they have committed an error, since, under the charter of such city, its common council has the power, at any time after the confirmation of the assessment roll, to reconsider its action in the premises and proceed cle now.

    Where it is shown upon the return to a writ of certiorari that, in the imposition of a tax, the officers of a city proceeded upon a wrong basis; essentially failed to comply with the statute which they invoked in making their determination in relation to the subject-matter; did not pursue the matter in the mode required by law, and violated the law to the prejudice of the relator, the assessment and all of the proceedings leading up to the same will be vacated and annulled.
    OebtioRARi issued out of the Supreme Court and attested on the 10th day of February, 1894, directed to Mahlon B. Adams and others, composing the common council of the city of Rochester, Henry C. Munn, Edward B. Burgess and George F. Roth, assessors of the city of Rochester, and to Samuel B. Williams, treasurer of the city of Rochester, county of Monroe and State of New York, commanding them to certify and return to the office of the clerk of the county of Monroe all their proceedings, decisions and actions, together with a record of all the proceedings had before them in relation to an assessment upon the relator for the construction of a bridge oyer its. tracks.

      Gharles J. Bissell, for the relator.

      A. J. Bodenbeelc, City Attorney, for the respondents.
   Ward, J.:

The relator, the Western New York and Pennsylvania Railroad Company, is enjoying the franchise secured from the State by chapter 326 of the Laws of 1880 whereby the banks and prism of the old Genesee Yalley canal could be occupied by a railroad from Rochester to the Pennsylvania line. Section 5 of that act imposed upon the railroad corporation the duty, within the city of Rochester, of depressing its tracks below grade at the crossing of any streets in the city, and to provide a suitable overcrossiug thereat under the direction of the surveyor of the city. The relator’s road crosses Bronson avenue in the heart of the city, and the relator for a considerable time had maintained an overcrossing or bridge over the said street for the passage of the public, which had been sufficient for public use until the summer of 1892, when a street railway company in the city desired to extend its lines to Bronson avenue and over said crossing for the use of its road, upon which its cars were to be propelled by electric power. An examination of the bridge was made by a railroad engineer, and he reported that it was not safe to transport over it the cars of the street railway company weighing fifteen tons, followed by' a trailer weighing eight and a half tons, and that there was some weakness about the bridge, and that a new one was needed. This street railway company communicated to tlie common council of the city the result of this examination, and suggested that the relator was under statutory obligation to provide a suitable bridge over the tracks at the place named. Bronson avenue was built up of structures consisting of residences and business places to the track of the railroad on either side of the street, and a large number of people 'were accommodated by the bridge in question. The chief benefit that the relator derived from the structure was the right of passage thereunder along its tracks. The common council appointed a committee to confer with the relator and induce it to make a new structure that would answer the purposes of the street railway company, but it failed in the undertaking, and then proceedings were taken by the common council to construct a new bridge at this point as a public improvement in the city, under its charter, which permitted proceedings for the purposes of public improvements, the statute (Laws of 1880, chap. 14, § 170) providing that the whole expense should be paid “by a local assessment be assessed upon all the lots and parcels of lands to be benefited thereby in proportion to the benefit which each will derive therefrom.”

The common council directed the city surveyor to make an estimate of the cost of the new structure, and he reported an estimate of the expense thereof at the sum of $6,700.

Tbe common council adopted an ordinance in effect providing for tlie construction of the bridge; that its cost should be the amount recommended by the surveyor, and also providing that the lands of the relator within the city of Rochester (describing them) should be deemed benefited by the construction of the bridge, and that the entire expense should be assessed thereon.

Pursuant to this ordinance the city assessors assessed this sum upon the relator’s property alone, and upon the review day provided by statute the relator appeared before the assessors and objected to the tax, and-to the authority of the assessors of the city to assess it, and claimed that their proceedings were without authority and void. No attention was paid to this protest, but the assessment roll was confirmed by the common council and passed over to the city treasurer for collection ; but, under the charter, the common council had power at any time after the confirmation of the assessment roll to reconsider the same and to take further proceedings.

The usual proceedings in such cases were taken by the common council to perfect an assessment and to give notice to the public. It does not appear that it took any evidence except such as appealed to thé senses.

The petition for the writ of certiorari and the return thereto disclose, in effect, that the whole proceeding was aimed at the relator, and that it was intended to make its property pay the tax upon the theory that it was liable, under the act of 1880, to construct just such a bridge at this crossing as the city authorities might by ordinance demand, and that the common council proposed to enforce such obligation through the taxing machinery of the city. _

The petition showed, uncontradicted by the return, the facts here-inbefore stated as to Bronson avenue and the property along it and surrounding the crossing, and the people and property benefited thereby, but, as we have said, no other property was assessed except that of the relator; not even the property of the street railway for whose benefit this new structure was required.

The fundamental provision of the charter, that the burden of the assessment should be upon all the lots benefited thereby, was utterly disregarded.

While it is doubtless true that if, after a fair examination by the council in a matter within its jurisdiction of the various properties that might be benefited by the improvement, it designates certain ones to be taxed and relieves others, and its conclusion is not fraudulent, it must stand; but where the common council, in effect, makes no such examination, and excludes all properties that from the facts and surroundings must of necessity be benefited by the improvement, and casts the burden upon a single property, and that with the purpose but slightly concealed of enforcing some extraneous right or duty claimed to exist, in no way connected with or euforci-ble by the statutory proceedings in which it is engaged, it proceeds upon wrong premises, and its proceedings and the assessment growing out of it are invalid.

The defendants claim that the relator had the newspaper notice of the proceedings of the common council required by the city charter, and should have appeared and made allegations against such proceedings, and that failing to do so it is concluded by the action of the city authorities. They also claim that under the city charter the action of the council is conclusive and final and cannot be inquired of here. A single answer disposes of both of these contentions. It is only when city officers have jurisdiction of the subject-matter and conduct their proceedings consistently with the statute that their proceedings are conclusive.

Assuming that the relator was under statutory obligation to build a new bridge over the street, it could only be compelled to do so by an appropriate action in which the relator could be heard as to its liability. The relator should have its day in court, which it has never had. It is possible that the city, upon giving notice to the relator to construct the bridge, and it failing to do so, could have •constructed the bridge and brought an action against the relator for the expense, and then the relator could have been heard upon the question of the necessity for a bridge and of the expense thereof. Neither of these proceedings was adopted. The city officers simply determined that the structure must be built strong enough to carry the heavy cars of the street railway company, which no ordinary bridge could sustain, and which it was not in the contemplation of the statute that the relator should be required to build. This statute of 1880 (Chap. 326), like all other statutes, should receive a reasonable construction. The Legislature certainly did not intend thereby to impose upon the railroad company, in constructing its crossing over tlie numerous streets in the city that its tracks should intersect, the building of structures that would withstand such enormous weight, which is far beyond that of the vehicles that ordinarily pass over the streets and highways. An indication of the legislative view upon this subject may be gathered from chapter 52G of the Laws of 1887, which provides, in effect, that no town shall be liable for any damage resulting to a person or property by reason of the breaking of any bridge by a traction engine weighing over four tons crossing the same, and in the revision of the Highway Law in 1890, section 154 of chapter 568, in the case of the breaking of a bridge by an engine weighing over four tons, the owner of the engine is made liable for damages.

The defendants made a point that the assessment roll having passed into the hands of the treasurer before the certiorari was obtained it is now too late to compel the common council and the assessors to reverse their action if they have committed error, as their power is spent. The point is not well taken, for, as before said, the common council still have the power to reconsider their action and proceed de novo.

It is clear to us that in the imposition of this tax the city officers proceeded upon a wrong basis. They have essentially failed to comply with the statute that they have invoked in making their determination in relation to the subject-matter. They have not pursued the matter in the mode required by law, and they have violated the law to the prejudice of the relator.

The assessment, therefore, and all of the proceedings leading up to the same by the common council should be vacated and annulled, with fifty dollars costs, and the disbursements of the relator to be paid by the defendants.

Lewis and JBeadley, JJ., concurred.

The proceedings and assessment vacated and annulled, with fifty dollars costs and disbursements. ■

        Sic.


author: Waed, J.:

text:
    John Mullen, as Administrator, etc., of William Thomas Guinn, Deceased, Appellant, v. James Guinn, Respondent.

      Administrator personally liable for costs ■ — practice on the entry of a personal judgment against an executor — effect of a joinder of causes of action —remew of an erroneous direction of a verdict.

    An action brought in the name of an administrator claiming to recover, as such, upon a cause of action arising after the death of the decedent, although concerning the property of the deceased, is an action in favor of the administrator individually, and he is liable for costs if he is defeated in the - action, and, in a clear case, a judgment may be entered against him for costs without application to the court.
    Section 8246 of the Code of Civil Procedure applies only to cases where the cause of action upon which a suit is brought by an executor or administrator arises in favor of the deceased and not to a cause of action in favor of an executor or administrator personally.
    Although it is in many cases unnecessary for the successful party to an action brought against him by an executor or administrator to obtain by a motion the leave of the court to enter a personal judgment against such executor or administrator, the practice of so obtaining such leave is proper.
    The Code of Civil Procedure permits the joinder of causes of action in certain cases, but each cause of action so joined must have all the elements and attributes of an independent cause of action.
    An erroneous direction of a verdict in favor of the defendant, made by the trial court in an action brought by an executor or administrator, cannot be considered upon an appeal from an order made in such action charging the executor or administrator personally with the costs of the action; it can only be reviewed upon an appeal from a judgment and in a direct proceeding authorized by law to correct the error.
    Appeal by the plaintiff, John Mullen, as administrator, etc., of William Thomas Guinn, deceased, from an order of the Supreme Court, made at the Steuben - Special Term and entered in the office of the clerk of the county of Steuben on the 4th day of March, 1895, granting the defendant’s motion that judgment for the amount of the verdict and costs be entered against the plaintiff personally.

      FrcmJc II. Robinson, for the appellant.

      L. O. Van Fleet, for the respondent!
   Waed, J.:

Tbe plaintiff as administrator instituted an action in this court and the complaint contained two causes of action, one for services rendered by the decedent for the defendant, and the other to recover for some personal property that had been taken by the defendant from the administrator after the death of the decedent and which had been his property, the plaintiff waiving the tort and seeking to recover upon the implied contract for its value. This was the second cause of action. The defendant answered by certain denials and alleged counterclaims to both causes of action, the counterclaim alleged to the second cause being that the defendant after the death of the decedent and before the commencement of the action had paid funeral expenses of the deceased, who was his father, to the amount of fifty dollars, for which he demanded judgment. The cause was tried at the Steuben Circuit in April, 1894, and upon the trial the plaintiff was nonsuited as to the first cause of action. As to the second cause of action, the court held that the evidence was sufficient to establish a portion of the plaintiff’s claim to the amount of forty-seven dollars and fifty cents; thereupon the plaintiff admitted in open court that the defendant had paid the funeral expenses of the deceased to the amount of ninety dollars. The defendant gave no evidence whatever, and the court passed upon the whole question as one of law and held that the funeral expenses paid by the defendant were a proper counterclaim to the second cause of action and deducted the forty-seven dollars and fifty cents from the ninety dollars funeral expenses and directed a verdict in favor of the defendant for forty-two dollars and fifty cents. The affidavit of the defendant’s attorney discloses that on the 1th day of May, 1894, the defendant entered judgment against the plaintiff personally for forty-two dollars and fifty cents damages and one hundred four dollars and fifty-five cents costs, and an execution was issued thereon, and in July following a motion was made at the Monroe Special Term by the plaintiff to set asid'e the judgment, and the parties upon the hearing of the motion stipulated that the judgment be set aside without prejudice to the rights of the defendant to move for the order here appealed from, with the right to the plaintiff to raise any question of laches which might exist as to the making of such motion.

Tbe plaintiff now contends, first, that the defendant has been -guilty of such delay and laches in making this motion as deprives him of the right to the order he has obtained. "We think the papers before us sufficiently excuse the delay.

The appellant also contends that the motion should not have been entertained by the Special Term without the certificate of the judge presiding at the trial setting forth the facts and what took place upon the trial, and that affidavits alone were not sufficient. We cannot sustain this contention, because the affidavits set forth clearly and without dispute wliat occurred upon the trial, and the pleadings before us show that the second cause of action was one arising after the death of the intestate, and was for a cause that accrued to the plaintiff individually and not as administrator, and it has been settled by a long line of cases that where an action is brought in the name of -an administrator claiming to recover as such upon a cause of action that arose after the deal'll of the decedent, though concerning the property of the decedent, it is a cause of action in favor of the plaintiff individually, and he is liable for costs if he is defeated in the action (Buckland, as Administrator, etc., v. Gallup, 105 N. Y. 453; Thompson v. Whitmarsh, 100 id. 35; Holdrige, as Administrator, v. Scott, 1 Lans. 303; Ketchum, Executor, v. Ketchum, 4 Cow. 87; Lyon & Others, Executors, v. Marshall, 11 Barb. 241; Hees v. Nellis, 65 id. 440; Ackley v. Ackley, 21 N. Y. Supp. 877, and cases cited), and judgment for costs may be entered in clear cases without application to the court. (Cases above cited.)

Application was made by the defendant to the judge granting this motion for a certificate, be being the same judge who presided at the trial, and was refused upon the ground that as the liability for costs clearly appeared from the papers presented, the certificate was unnecessary. The affidavits on the part of the plaintiff disclose that the action ivas brought in good faith and under section 3246 of the Code of Civil Procedure, which provides that “ in an action brought by or against an administrator or executor in his representative capacity * * costs must be awarded as in an action, by or against a person prosecuting or defending in his own right, except as otherwise'prescribed in sections 1835 and 1836, * * * bnt they are exclusively chargeable upon and collectible from the estate, fund or person represented unless the court directs them to be paid by the party personally for mismanagement or bad faith in the prosecution or defense of the action.” The plaintiff claims that he cannot be made personally liable for costs unless he'has been guilty of bad faith or mismanagement. This would probably be so if his case came within this section. Ve conclude that this section has application only to cases where the cause of action arose in favor of the deceased, and not to causes of action in favor of executors or administrators personally.

The practice of obtaining leave of the court by motion to enter personal judgments of this kind has been sanctioned by the courts, although in many cases unnecessary. (Administrators of Tilton v. Williams, 11 Johns. 403; Reynolds v. Collin, 3 Hill, 441; Barker v. Baker, 5 Cow. 267; Burhans, Executor, v. Blanchard, 1 Den. 626; Bostwick, Executor, v. Brown, 15 Hun, 308.)

In Admrs. of Tilton v. Williams (supra) and Barker v. Baker (supra) the declarations contained ‘several counts, some alleging a cause of action arising in the lifetime of the decedent, and others afterwards,'and the plaintiff was held personally liable for costs on account of his failure to recover upon the causes of action arising after the appointment of the plaintiff as personal representative. The Code permits, indeed encourages, the joinder of causes of action in certain cases, but each cause must have all'the elements and attributes of an independent cause of action. This scheme of the Code finds strong confirmation in section 3234 providing as to costs where a plaintiff succeeds upon one cause of action and a defendant upon another. And in disposing of the question raised by this appeal we treat this second cause of action and all its incidents the same as if it were the only one alleged in the complaint and disposed of at the trial.

The appellant also contends that the trial court was not justified in directing a verdict for the defendant for the funeral expenses after deducting the amount found due the plaintiff on the second cause of action, as it was not a proper counterclaim, and, therefore, it was error for the court to make the order appealed from, directing that a judgment be entered against the plaintiff, personally, for the balance of such funeral expenses. If there was error in that regard it cannot be considered here, and can only be reached upon an appeal from the judgment and in a direct proceeding authorized by law to correct tbis error. We take tbe verdict as we find it, and assume it to be correct upon tbis appeal.

The trial court held that the sum of forty-two dollars and fifty cents, which remained due the defendant after the sum of forty-seven dollars and fifty cents found in favor of the plaintiff upon his personal cause of action had been absorbed by the defendant’s counterclaim, was a claim against the plaintiff individually, and, as we understand, the papers directed a verdict against him, individually, for that amount. There was no error, therefore, in the order appealed from providing that the amount of the verdict, together with the costs, should be charged against the plaintiff, personally.

The order appealed from should be affirmed,. with ten dollars costs and the proper disbursements of the respondent upon the appeal.

Lewis and Bradley, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.


author: "Ward, J.:

text:
    William H. Mandeville, Respondent, v. Alonzo F. Kent and The Travelers’ Insurance Company of Hartford, Connecticut, Defendants; Ellen K. Mackey and Lillie K. Bromley, Appellants.

      Adjudication as to the ownership of a, life insurance policy —payment of the premium by a third person — a lien is thereby created in his faxor superior to that of the contingent beneficiaries.

    Upon the trial oí an action, brought to determine the ownership of a life insurance policy and to enforce the plaintiff's alleged interest therein, it was shown that at the request of the assured, the plaintiff paid certain premiums due upon such policy in order to prevent its forfeiture; that in this policy the wife of the assured was named as the beneficiary, and it was covenanted that in case of her death, prior to the death of the assured, the amount of the policy should he paid to certain persons specified therein.
    The assured gave the plaintiff a note for the amounts so paid hy him, and he and his wife assigned to the plaintiff the policy of insurance and all sums of money and interest and benefits whatever that were then due or should thereafter arise under such policy, as collateral security for the payment of such note, and delivered the said policy to him. Thereafter, the assured and his wife requested the insurer to issue a paid-up policy in place of the policy delivered to the plaintiff. This request was complied with and the paid-up policy was issued and delivered to the plaintiff and was held hy him as security for the repayment of the money paid hy him, and the present action was brought hy the plaintiff to have it adjudged that the policy had been duly assigned to him, that he held it as security, and that such security he enforced.
    It was shown upon the trial that the wife of the assured died during his lifetime; that the contingent beneficiaries named in the policy paid no part of the premiums, and never had the policy under their control nor in their possession, and that no part of the premiums paid hy the plaintiff had been repaid to him.

      Held, that the plaintiff’s claim was a charge upon the paid-up policy in its very inception which could not be divested except hy the payment of that claim;
    That there was no such delivery of the paid-up policy to the plaintiff or to the assured as would inure to the benefit of the contingent beneficiaries and allow them to take the policy discharged of the plaintiff’s claims;
    That no trust was created in favor of the contingent beneficiaries except such as might exist in the balance of the policy, if any, remaining after the payment of the plaintiff’s claim.
    Appeal by the defendants, Ellen K. Mackey and Lillie K. Brom-ley, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Cattaraugus on the 3d day of October, 1894, upon the decision of .the court rendered at the Cattaraugus Special Term, adjudging that the plaintiff is entitled to hold, as collateral security, a certain policy of insurance, and directing the sale thereof and the payment of a certain note held by the plaintiff out of the proceeds resulting from such sale.

      Uriah W. TompMns, for the appellants.

      Charles 8. Cary, for the respondent.
   "Ward, J.:

The defendant Alonzo F. Kent, in 1881, procured the defendant the Travelers’ Insurance Company of Hartford, Conn., to issue to him a policy of insurance which provided that in case of his death the company would pay to Maggie C., his wife, or, in the event of her death prior to his, to her sisters (defendants and appellants here), Lillie K. Bromley and Ellen K. Mackey, the sum of $10,000, containing certain conditions and providing for the payment of annual premiums. The policy further provided that after the payment of three or more animal premiums, if the policy should determine, by reason of default in the payment of any subsequent premium, then, notwithstanding such default, the company would grant a “ paid-up policy,” payable like the first for as many tenth parts of the sum insured as there had been complete annual premiums paid thereof when the default in the payment of premiums had first been 'made, and all interest in the policy should be forfeited to the insurance company unless the first three premiums were paid. In the years 1882, 1883 and 1884 the respondent paid divers sums of money to the insurance company on account of the premiums due on the policy, which on the 24th of October, 1884, amounted in the aggregate to $455.33. Those premiums were paid by respondent at the request of Kent, he being unable to pay them and for the purpose of keeping the policy alive and preventing its forfeiture, and but for such payments all interest in the policy would have become forfeited by the terms thereof. Prior to the payment by the respondent of the last quarterly payment of premiums required to be paid in order to complete the payment of the premiums for the three years, the said Kent, being unable to pay the same, requested the- respondent to pay such premiums, and agi-eed with the respondent to assign and transfer such policy as security for the premiums paid as aforesaid, including the amount then to be paid ; that relying upon such agreement the respondent did pay the sum of $109.01 as the last quarterly premium to complete the three years’ payment upon said policy and thereby prevented its forfeiture.

In pursuance of such agreement, on October 24, 1884, Kent and his wife executed and delivered to the respondent a written instrument, transferring and assigning to him the said policy of insurance and all sums of money, interests and benefits whatever that were then due or should thereafter arise under said policy as collateral security for the payment of a note of $473.33, dated on that day and signed by Kent, being the amount of premiums which had been paid as aforesaid by the respondent and a small amount for rent of eighteen dollars. Thereupon said assignment, together with the policy, was delivered to the respondent and has been since hold by him, a copy of which assignment was filed with the insurance company, and on the 15th of December, 1884, Kent and wife requested the company to issue a paid-up policy in tlie place of tbe first-mentioned policy for the sum of $3,000, which request was complied with by the company, and such paid-up policy was issued and delivered to the respondent and has since been held by him as security for the payment of the money, and this action was brought by the plaintiff, now respondent, to have the said policy adjudged as duly assigned to him and that he holds it as security and that such security be enforced.

In October, 1890, the wife, Maggie 0. Kent, died, and the appellants here, Mackey and Bromley, survive her. They paid no part of the premiums, never had the policy under their control nor in their possession ; no part of the premiums advanced has been repaid to the respondent. The appellants alone answer in the case. The trial court gave judgment for the plaintiff, deducting the eighteen dollars rent, and ordered a sale of the policy upon proper notice, and the appellants appeal to this court from such judgment. The appellants seek to avail themselves of the benefit of the paid-up policy without paying what it cost the respondent to secure it; but for the interposition of the respondent and the advances he made in payment of the premiums there would have been no valid policy now in existence and no claim would exist in favor of any one against the insurance company. In good faith the respondent paid the premiums before the assignment to him at the request of Alonzo E. Kent and upon the express agreement that the policy should be assigned to the respondent as security to cover all the premiums paid by the respondent. The assignment of the policy, with the request that the paid-up one issue and be delivered to the respondent for his security, was in pursuance of this agreement. The paid-up policy was, in fact, never delivered to Kent or his wife, but to the respondent pursuant to the assignment. It went to him its a result of his payments which saved the old policy and made the new one possible, so that the respondent’s claim was a charge upon the new policy in its very inception, which could not be divested except by the payment of that claim. There was, therefore, no such delivery of the paid-up policy to the respondent or to Kent as inured to the benefit of the contingent beneficiaries as would allow them to take the policy discharged of the respondent’s claim, nor can it be said that the delivery of the original policy to Kent vested a right in the appellants to bold tlie fruits of it against tlie respondent’s equity ; nor was any trust ever created in favor of the contingent beneficiaries (the appellants), except such as may possibly exist in the balance of the policy, if any remains, after the payment of the respondent’s claim.

The broadest and clearest equity sustains the respondent, to which the appellants must submit.

The judgment should be affirmed, with costs of the appeal to be paid by the appellants.

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

Judgment affirmed, with costs.


text:
    The People of the State of New York ex rel. Mary C. Hanford and Mary E. Hanford v. James A. Thayer and Others, Commissioners, etc.

      Renew, under Code of Civil Procedure, § 2121, of an order appointing commissioners pursuant to sections 84 and 89 of chapter 568 o/,1890 — •power of a County Court upon a motion to confirm or vacate their report —purpose of a writ of certiorari — word “ appeal” as used in Code of Civil Procedure, § 2122 — statute, when held to he unconstitutional —power to modify decision.

    An order appointing commissioners, pursuant to section 84 oí chapter 568 of the Laws of 1890, to certify as to the necessity of altering a highway, if made hy a court of record, cannot be reviewed, under the provisions of section 2121 of the Code of Civil Procedure, on the return to a writ of certiorari issued to review the proceedings of such commissioners.
    The language of section 89 of chapter 568 of the Laws of 1890 is broad enough to empower the County Court, upon a motion to confirm or vacate the report of tlie commissioners, to review all the proceedings in the laying out of a highway after the granting of the order appointing the commissioners, whether such proceedings relate to tlie merits of the application or otherwise, and upon such motion the County Court may review all questions that can be brought before the Supreme Court by a writ of certiorari issued to review the proceedings of such commissioners.
    Prior to the-adoption of the present Code of Civil Procedure, a writ of certiorari could only be resorted to in cases where an appeal and other proper or appropriate remedies were not available.
    The purpose of section 2122 of the Code of Civil Procedure is to deny the writ of certiorari, where the action of the inferior body can be adequately reviewed by a court or some other body, or officer, either by a technical appeal or by a proceeding which, for the purpose of securing the desired review, is equivalent to an appeal, and the term “ appeal” is there used in its broad sense, signifying a removal of a cause from a court of inferior to one of superior jurisdiction.
    The court only holds a legislative act unconstitutional in plain and clear cases, and where a construction can be fairly adopted that sustains the validity of the act it will be adopted.
    Section 89 of chapter 568 of the Laws of 1890 does not in terms provide that the court may modify any award of damages that may be made by the commissioners therein provided for, and the proper construction of the general terms there used, as to the right to modify the decision of the commissioners is, that the County Court can modify the decision only to the extent that the Constitution permits, and cannot make a modification that will violate the Constitution.
    Under the provisions of section 2141 of the Code of Civil Procedure, the Supreme Court, upon the hearing had upon the return to a writ of certiorari, may make a final order annulling or confirming, wholly or partly, or modifying the determination reviewed as to any or all the parties.
    CeetioRAei issued out of the Supreme Court and attested on the 26th day of November, 1894, directed to James A. Thayer, John "W. Smith, 2d, and A. Castner Townsend, commanding them to certify and return to the office of the clerk of the county of Yates all their proceedings as commissioners in the matter of laying out a certain highway.

      William S. Briggs, for the relators.

      M. A. Leary, for the respondents.
   Ward, J.:

Upon due application the County Court of Yates county on the 19th of June, 1894, appointed the respondents commissioners, pursuant to section 84 of the Highway Law (Chap. 568 of 1890), to certify as to the necessity of altering a highway in the town of Jerusalem, Yates county, which alteration consisted of opening a new road through the premises of the relators and others, and abandoning a portion of an old road as useless, and to assess the damages therefor. The commissioners, upon notice to the parties interested, examined the routes, heard the testimony and such reasons as were offered for and against the laying out or discontinuing of the highway, and assessed the damages, and made a certificate thereof in due form, which was filed in the county clerk’s office of Yates county with the minutes and evidence of their proceedings on the 19th day of October, 1894, and filed a duplicate of such decision in the town clerk’s office of said town on the 18th day of October, 1894.

The papers before us contain the appointments of the County Court of Yates county, by which it appears that terms of that court for the hearing and decision of motions and appeals, and other proceedings without a jury, were appointed for the first Tuesday of several months in the year, among which were November and December. Yarious objections were taken by the relators to the proceedings, and the Special Term of this court, on the twenty-sixth of November, made an order directing the issuing of a certiorari, and a certiorari was issued which brings the subject before us.

The respondents meet us upon the threshold of this case rvith the objection that a certiorari does not lie to review these proceedings, because by section 2122 of the Code of Civil Procedure “a writ of certiorari cannot be issued in either of the following cases : First, to review a determination which does not finally determine the rights of the parties with respect to the matter to be reviewed; second, where the determination can be adequately reviewed by an appeal to a court or to some other body or officer.”

Section 89 of the Highway Law provides that “ within thirty days after the decision of the commissioners shall have been filed in the town clerk’s office any party interested in the proceeding may apply to the court appointing the commissioners for an order con-' firming, vacating or modifying their decision, and such court may confirm, vacate or modify such decision. If the decision be vacated the court may order another hearing of the matter before the same or other commissioners. If no such motion is made the decision of the commissioners shall be deemed final. Such motion shall be brought on ujron the service of papers upon adverse parties in the proceeding according to the usual practice of the court in actions and special proceedings pending therein; and the decision of the County Court shall be final excepting that a new hearing may be ordered as herein provided. If the final decision shall Ire adverse to the applicant, no other application for laying out, altering or discontinuing the same highway shall be made within two years.”

Tlie order appointing commissioners having been made by a court of record cannot be reviewed hero (§ 2121 of the Oode); therefore, if permitted to review at all, we are limited to the consideration of such matters as arose after the making of this order.

The language of section 89, above quoted, seems broad enough to empower the County Court, upon a motion to confirm or vacate, to review all the proceedings in the laying out of the highway after the granting of the order appointing the commissioners, whether those proceedings relate to the merits of the application or otherwise. In other words, the County Court can review any question that this court can upon this writ.

Prior to the adoption of the present Code the rule established in practice and by many cases was that the writ of certiorari could only be resorted to in case where an appeal or other proper and appropriate remedy was not available, and could not be resorted to unless necessary to obtain a review in cases where no other provision thereof was -made by law. (Fiero on Spec. Proc. 107, and cases there cited.) There was conflict in the decisions as to just what this broad language meant and how far the prohibition extended, and the result was the legislation embraced in section 2122 of the Code. "We think the purpose of this section was to deny the writ where the action of the inferior body could be adequately reviewed by a court or some other body or officer, whether by a technical appeal or by a proceeding which was equivalent to an appeal that secured the desired review. It was the review that the Legislature aimed at, and its pui'pose is accomplished as well by a motion bringing up the whole proceeding as by a direct appeal from the order.

An appeal is simply a “ removal of a cause from a court of inferior to one of superior jurisdiction for the purpose of obtaining a review and retrial.” (Bouvier’s Law Diet.) And the Imperial Dictionary defines appeal as “ In law, to remóve; as a cause from an inferior to a superior judge or court.” In this broad sense the term appeal was used in the Code. The relators, therefore, had a complete and adequate remedy by bringing the record evidence and all the proceedings laying out this highway before the County Court. That court had the power to vacate those proceedings if any of the grounds of error alleged in the petition for this writ or that appear by the return before us were well taken.

The Ootinty Court was open and a term appointed for the first Tuesday of November, at which this motion could have been made and the review had before the court appointed by the statute to make the same, and this review of the County Court was a part of the scheme of the revision of the Highway Law in 1892 (G. L. chap. 19), and was undoubtedly intended to cut off the almost constant application to this court for writs of certiorari in highway cases.

The case before us is readily distinguished from People ex rel. Titsworth v. Nash (15 N. Y. Supp. 29), which holds in effect that under the Highway Law prior to the revision the order of a county judge -confirming the report of commissioners appointed by him in proceedings to lay out a highway is not a final determination that could be adequately reviewed by appeal, and hence certiorari would lie.

In The Matter of De Camp (77 Hun, 478) the General Term -of the fourth department held that the order of the County Court upon review of the proceeding to lay out a highway was final under ■section 89, above cited.

The learned judge holding the Special Term, at which this writ was granted, in his opinion seems to concur in the view here •expressed, that the motion to review by the County Court is equivalent to an appeal as specified in the Code, but he concludes that the power of review given the County Court embraces the right to modify the assessment of damages made by the commissioners, and to that ■extent the act would violate the State Constitution (Art. 1, § 7), which requires the damages to be fixed by a jury or by not less than three commissioners appointed by a court of record, and, hence ■certiorari to this court is proper. The section (89 of the Highway Law) certainly does not in terms provide that the court may modify •any award of damages that may be made by the commissioners, and the construction of the general terms used as to the right to modify the decision of the commissioners would be that the County Court •could modify the decision only to the extent which the Constitution would permit and not make a modification that would violate the 'Constitution. The courts only hold a legislative act unconstitutional in plain and clear cases, and where, as in this case, a construction ■can be fairly adopted that sustains the validity of the law the courts ■do so.

By section 2141 of the Code of Civil Procedure this court, upon the hearing of a certiorari, may make a final order annulling or confirming, wholly or partly, or modifying the determination reviewed as to any or all of the parties.” This is the same power substantially that is conferred, as we have seen, upon the County Court so far as the proceeding before it is concerned. The Supreme Court cannot modify the damages any more than the County Court under the Constitution ; therefore, in this respect, no additional relief can be given by this court under the writ than the County Court may grant in the review given by statute.

The relators have mistaken their remedy. They should have gone to the County Court under section 89. It becomes unnecessary, therefore, to examine the other questions raised upon this writ.

The writ of certiorari should be quashed, but without costs, as the question raised is new.

Lewis and Bbadley, JJ., concurred.

Certiorari quashed, without costs.