text:
    CHARLES L. BLAKESLEE, Appellant, v. SAMUEL T. FISHER, Respondent, Impleaded with MICHAEL H. FARREN.

      Building contract — mechanic's lien of material-man — application of balance of contract-p'ice in the case of the contractor’s default.

    Where a building contract provides that the owner may complete the work on the contractor’s default and deduct the expense from the amount named in the contract, and the owner does complete the work accordingly, and there is a balance left of the amount named in the contract, over and above the cost of completion by the owner, or if the owner does not complete the work, and there would be a balance left after deducting what it would cost to complete the work, such balance will be subject to a mechanic’s lien in favor of a material-man.
    Where a building contract provided that the owner might request additions to or omissions from the work, and that the same should not affect the contract,' but should be added to or deducted from the amount of the contract as the case might be:

      Held, that the value of extra work done was money due the contractor over and above all payments made, and over and above all deductions to be made on account of work omitted to be done, whether with or without the consent of the owner, and was applicable in satisfaction of the lien of a material-man.
    Appeal by the plaintiff Charles L. Blakeslee from a judgment of the Supreme Court, entered in the office of the clerk of the county of Albany on the 2d day of November, 1891, on the report of a referee dismissing the plaintiff’s complaint upon the merits, as against the defendant Samuel.T. Fisher, with costs.
    The action was brought for the foreclosure of a mechanic’s lien filed by the plaintiff for materials, amounting in value to $201.32, furnished by him to the defendant Michael H. Farren for, and used in a building on the premises of the defendant Samuel T. Fisher, which Farren had contracted to build for Fisher' for a stipulated amount.
    The issue presented by the answer of the defendant Fisher, the owner, was sent for trial to a referee,-who found, among other things, that the defendant Farren did not substantially perform said contract, and that such non-performance was not consented to by the defendant Fisher, and that the defendant Fisher did not waive such performance, and directed judgment for the defendant Fisher dismissing the complaint, as to him, on the merits, with costs, to be paid by the plaintiff, and decided that the plaintiff is entitled to judgment herein against the defendant Farren for the sum of $201.32, with interest thereon from the 21th day of July, 1889, amounting in all to the sum of $231, with costs, to be paid by the defendant Michael EL Farren.
    The building contract between the defendants, Fisher and Farren, contained the following provision : “ Should the contractor, at any time during the progress of the said works, refuse or neglect to supply a sufficiency of materials or workmen, the owner shall have the power to provide materials and workmen, after three days’ notice in writing being given, to finish the said works, and the expense shall be deducted from the amount of the contract.”

      Louis W. Pratt, for the appellant.

      Edward IF. Nugent, for the respondent.
   Herrick, J.:

I think the referee erred in his conclusion in this case. Under the contract the owner could go on and complete the work if the contractor refused or neglected to do so, and dediict the expenses from the amount of the contract.

If, after doing so, there is a balance left, or if the owner does not choose so to do, and then, after deducting what it would cost to complete the work from the contract-price there is a balance left, I think the lienor is entitled to that balance. (Wright v. Roberts, 43 Hun, 413; affirmed, without opinion, in 118 N. Y., 672; Foshay v. Robinson, 43 N. Y. St. Rep., 20; Graf v. Cunningham, 109 N. Y., 369; Van Clief v. Van Vechten, 130 id., 571-581.)

The last case was one where the owner had gone on and completed the contract upon the default of the contractor, and the court said: “ The difference between the sum thus expended and the aggregate amount unpaid on the contract with Smalle upon the completion of the entire work, became due under the contract; to the extent of that sum, being the difference between $2,023 and $1,905.20, the lien of the plaintiffs attached, and they are entitled to a foreclosure for that amount.”

In Larkin v. McMullen (120 N. Y., 206), and Hollister v. Mott (132 N. Y., 18), there was not a substantial compliance with the contracts, and neither was there any provision in the contracts by which the owners could complete the contracts in case of the contractors’ default, and in those respects the cases are distinguished from those heretofore cited, the principles of which are recognized in both the Larkin and Hollister cases.

In the case before us, as we have seen, there was an express provision allowing the owner to complete the work, in case of the contractor’s default, and deduct the expense from the contract; the plain inference from that, it seems to me, is, that after making such deduction the balance, if any, would be payable to the contractor.

The fact that the owner has not seen fit to exercise his option to go on and do what he claims the contractor refused or neglected to do, seems to me to make no difference in principle, where the expense of doing the things not done can be ascertained. In this case the referee has found the specific things that the contractor refused or neglected to do, and the cost or expense of each item, and after deducting such cost or expense from the contract-price there is a balance left, and to that balance I think, under the principles of all the cases hereinbefore referred to, the plaintiff is entitled.

There is also another aspect of the case under which I think the plaintiff is entitled to recover.

The referee has found that the plaintiff has not substantially performed his contract, a conclusion in which I cannot concur, but which I will not discuss, but assume to have been correctly found : and the final decision arrived at by him is based upon that conclusion, that the contract not being performed by the contractor, there is nothing due him from the owner, and that there being nothing due the contractor, there is nothing to which the lien can attach.

The contract-price was $2,700. The referee has found that $2,509 was paid'upon the contract. That, by consent of the owner, work amounting to the sum of $102.69 ■ has not been performed by the contractor, and that work amounting to the sum of fifty-nine dollars, and twenty-five cents has been left unperformed without the consent of the owner.

The referee has also found that the contractor has performed extra work to the amount of $235.99. The contract contained this provision as to extra work: Should the owner, at any time during the progress of the said building, request any alterations, deviations, additions or omissions from the said contract, he shall be at liberty to do so, and the same shall in no way affect or make void the contract,. but will be added. or deducted from the amount of the contract, as the case may be, by a fair and reasonable valuation.”

An almost identical provision in a contract was passed upon in Garnsey v. Rhodes (45 N. Y. St. Rep., 145), and it was there held that the contractor could recover the value of the extra work, although he had hot completed the contract according to its terms.

The amount of the extra work is money due the contractor. (Woodward v. Fuller, 80 N. Y., 312.) In this case it is money due -over and above all payments made, and over and above all deductions to be made on account of work omitted to be done, both with and without the consent of the owner; and it is money that can be and should be applied in satisfaction of the lien.

For these reasons the judgment should be reversed, the referee ■discharged and a new trial granted, costs to abide the event.

Mayham, P. J., and Putnam, J., concurred.

Judgment reversed, new trial ordered, referee discharged, costs to abide event.


source: Caselaw Access Project

author:
Putnam, J.:
      Mayham, P. J. : Herrick, J.:

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. GEORGE H. BUSH, Appellant, v. THE BOARD OF COUNTY CANVASSERS OF ULSTER COUNTY, Respondent. THE PEOPLE OF THE STATE OF NEW YORK ex rel. GEORGE H. BUSH, Appellant, v. HENRY E. McKENZIE and Others, Respondents. THE PEOPLE OF THE STATE OF NEW YORK ex rel. GEORGE H. BUSH, Appellant, v. ROBERT H. FAIRBROTHER and Others, Respondents.

      Elections — ballots — objection to, as ma/i'kedfor identification — mandamus.

    A peremptory writ of mandamus should, not issue, under section 81 of chapter 363 of the Laws of 1890, as amended by chapter 396 of the Laws of 1891 (an act “ to promote the independence of voters at public elections,” etc.), where it does not affirmatively appear that an inspector of election, or other election officer or duly authorized watcher, during the canvassing of the votes, or immediately after the completion thereof, declared his belief that the ballots objected to, on the motion for such writ, were marked for the purpose of identification.
    Although a proceeding, under said section, in which the facts, whether objection was made to certain marked ballots at the time of the canvass, or, if not made, whether the marked ballots were voted, and, if voted, whether they were marked for identification, are disputed, might call for the issuance of an alternative writ of mandamus, if applied for, yet such relief cannot be granted where the application is for a peremptory writ.

      The argument by the relator, on a motion for a peremptory writ of mandamus, of questions raised by conflicting affidavits, is in the nature of a demurrer to the legal sufficiency of the opposing proof, and an alternative writ will not then issue.
    Where ballots cast at an election and which should have been destroyed, no objection having been made to them as marked for identification, have been preserved in violation of law, and have been, since the completion of the canvass, out of the possession of the election officers and exposed to the risk of being tampered with, they should not thereafter be allowed to be attached to the statement of the canvass.
    Where it appears that ballots cast at an election were not marked during the canvass or immediately thereafter, as objected to because marked for identification, or with words in substance to that effect, as required by the statute, neither the board of inspectors, nor a member thereof with its permission, can thereafter attach to the statement of the canvass theretofore filed with the board of canvassers ballots alleged to have been marked for identification, and indorse thereon that they were returned, as objected to because marked for identification; and ballots, so attached to the statement of the result of the canvass after the statement was originally filed, must be removed therefrom before such statement is canvassed by the board of county canvassers.
    Appeals by the relator, George H. Bush, from three several orders made at a Special Term of the Supreme Court, entered in the office of the clerk of the county of Ulster on the 25th day of November, 1892, which orders denied his motions for writs of peremptory mandamus in one case against the Board of County Canvassers of Ulster County, in another against the Board of Election Inspectors of District Number One, and in the other against the Board of Election Inspectors of District Number Two of the Town of Esopus, Ulster County, respectively, except that portion of such orders staying said board of canvassers, and staying proceedings under said order.
    Section 31 of chapter 262 of the Laws of 1890, entitled “An act to promote the independence of voters at public elections, enforce the secrecy of the ballot, and provide for the printing and distribution of ballots at public expense,” as amended by chapter 296 of Laws of 1891, is as follows:
    “ The votes for the several candidates shall be canvassed in the order in which they appear upon the several ballots. No ballot that has not the printed official indorsement shall be counted, except such as are voted in accordance with the provisions of section twenty-one of this act. All ballots that are defective in whole or in part shall be marked ‘ defective,’ and shall be preserved and filed as provided for in section twentv-seven of this act. When an inspector of election or other election officer or duly authorized watcher shall, during a canvass of the votes, or immediately after the completion thereof, declare his belief that any particular ballot or paster affixed thereto has been written upon or marked in any way with the intent that the same may be identified, the inspectors ■ shall write their names on the back thereof and attach it to the original certificate of canvass, and include in said certificate a statement of the specific grounds upon which the validity of such ballot is questioned. When the votes are to be estimated and the result declared by a board of county canvassers or other officers performing similar duties, such board or officers shall mention separately in the statement or certificate of canvass the number of votes thus questioned which were cast for each candidate, and the specific grounds upon which the same are claimed to be invalid as set forth in the original certificate of canvass. Such ballots shall be counted in estimating the result of an election; but within thirty days after the filing of the certificate declaring such result a writ of mandamus may issue out of the Supreme Court against the board of canvassers, or officers acting as such board, by whom the ballots were counted, upon the application cf any candidate voted for at the election to require a recount of the votes, and all questions relating to the validity of such ballots, and as to whether they were properly counted shall be determined in such proceeding. All such ballots shall be preserved for at least one year, and until the questions raised by such writ shall be finally determined. Election boards and boards of canvassers shall be continued in existence for the purposes of such proceedings.”

      J. Newton Fiero, for the relator.

      John J. Glooncm, for board of canvassers.

      Q. B. B. Ilasbrouck, Charles F. Gantine and Severyn B. Sharpe, for the defendants.
   Putnam, J.:

The order should be affirmed on the opinion of the court below. The relator was not entitled to an alternative writ of mandamus. (People ex rel. Hartford L. Ins. Co. v. Fairman, 91 N. Y., 387.)

Order affirmed, with ten dollars costs and printing.

Mayham, P. J. :

I concur with tlie conclusion of tlie learned judge at Special Term, that a peremptory writ of mandamus should not issue in these cases, because it does not affirmatively appear that an inspector of election or other election officer, or duly authorized watcher,” during the canvassing of the votes or immediately after the completion thereof declared his belief that the ballots objected to on this motion were marked for the purpose of identification as required by section 31 of chapter 262 of the Laws of 1890, as amended by chapter 296 of tlie Laws of 1891.

It is only when such objection is made that this summary proceeding can be adopted. But the failure to make such objections and thus lay the foundation for this summary proceeding does not render a ballot marked for ^identification a valid vote, but the statute makes such ballot absolutely void, and no neglect on the part of the inspectors or watchers should be permitted to give validity to a vote denounced by the law as void.

In this case it is positively asserted that these ballots were marked, but the respondent disputes their validity and denies positively that they were objected to at the time of the canvass. Here is a sufficient dispute as to the facts to authorize the issuance of an alternative mandamus, if a motion for an alternative writ had been made.

In the People v. Board of Canvassers of Putohess County, Earl, J., says: “A candidate intending to proceed by mandamtis, under section 31, should procure an alternative writ so that, if there should be any dispute about the facts, that can be settled before the peremptory mandamus issue.”

I think, in this case, an alternative writ, if applied for, should have issued, so that the facts in dispute, to writ, whether objection was made, or, if not made, whether the marked ballots were voted, and, if voted, whether they were marked for the purpose of identification could be tried as questions of fact.

But the relator in this case cannot have that relief on this motion, as his argument of the questions involved on the conflicting affidavits is in the nature of a demurrer to the legal sufficiency of the opposing proof (People ex rel. Hartford L. Ins. Co., 91 N. Y., 387); and when that is done the alternative writ will not issue.

Herrick, L, not acting.

Orders affirmed on opinion of Special Term, with ten dollars costs and printing and other disbursements in each case.

The following is the opinion delivered at the Special Term:

Herrick, J.:

These are motions for writs of peremptory mandamus -to the above-named defendants.

The applications are made upon the affidavit of the relator, who was a candidate for member of assembly at the recent general election; he states that at such election there were in the First Election district of the town of Esopus, in Ulster county, fifteen paster ballots, pasted upon the official ballots furnished for use at said district at said election, each and every one of which paster ballots was marked either by the person who cast the said ballot, or by some other person, for the purpose of having the same identified that said paster ballots contained the names of the candidates of the Republican party for the several offices to be voted for at said election ; that upon each of such paster ballots there was pasted a paster ticket upon which was printed the name of William Luby a candidate for coroner. In one of the above cases he is described in the moving affidavits as the Democratic, and in the other as the Republican, candidate for coroner. It is further alleged that some of the paster tickets containing the name of said William Luby were pasted upon the paster ballots, upside down, and the corner of each was cut off at a sharp angle. The same state of facts is alleged as to district No. 2, except the pasters were eleven in number and each one is alleged to have been pasted upside down upon the paster ballots.

The relator further states, upon information and belief, that during the canvass, or immediately after its completion, some of the election officers or authorized watchers declared his or their belief that such paster ballots had been marked for the purpose of identification. He also alleges that the inspectors of election, or some of them, knew and believed that such ballots had been marked for identification ; but that, notwithstanding such knowledge and declarations, the said inspectors did not write on the back of such ballots the words, objected to because marked for identification,” or any mark, in substance, to that effect, and did not in any way designate said ballots or sign tlieir, or any of their, names thereto; that they did not attach any of said ballots to-tlieir statement of canvass, or to the certified copies thereof, but that they kept said ballots, and now have them, in their possession. «

Upon that statement of facts he asks that the inspectors of election be directed to “ reconvene and attach to their statement of the canvass of said district, * * * or to the certified copy thereof, * * * the said marked ballots now in the possession of them, or any one of them, with the statement as required by law, that the counting of said ballots was objected to.” And in the proceedings against the board of county canvassers it is asked that such board allow the inspectors of election to attach to their statement of canvass the marked ballots referred to, and that, in the meantime, such board be forbidden from canvassing the •statements from such election districts. It will thus be seen that the question for the court to determine upon this motion is not whether the ballots were, in fact, marked for identification, but whether the inspectors of election should correct their statements of canvass by attaching to them, the ballots that the relator claims were marked for identification. The court will only compel the inspectors to do what it was their duty to have done.

The law provides as follows: When an inspector of election or other election officer or duly authorized watcher shall, during a canvass of the «votes, or immediately after the completion thereof, declare his belief that any particular ballot, paster or paster ballot affixed thereto has been written upon or marked in any way for the purpose of identification, the inspectors or canvassers shall write on the back of such ballot the words c objected to, because marked for identification,’ or words, in substance, to that effect, and sign their names thereto, and attach each such ballot to their written statement of the result of the canvass.” (Laws of 1892, chap. 680, § 114.)

The first thing to be done then to authorize the inspectors to attach the ballots to the statement of result is, that some election officer or watcher shall declare his belief that the ballot has been marked for identification; unless that is done they are neither authorized nor required to attach such ballots to the statement.

It was held in People ex rel. Bradley v. Shaw and others (133 N. Y., 493) that where the objection was not taken before the board ■of town canvassers that the ballots were marked for identification the court could not consider that objection afterwards. That was a ■case where, upon a paster ballot for town officers, there was also printed the name of the office of excise commissioner and of the candidate therefor; the objection was made that they were defective “in that they contained the name of an office and a candidate therefor that was not upon the official ballots, and could not be properly on the same ticket with the other town officers.” Subsequently it was claimed that they were marked ballots, but the court held that that question was not before it.

The relator says he is informed and believes that such objection, •or rather expression of belióf was made; and his allegation upon information and belief is all that appears before me to show that such necessary objection was made.

On the part of the defendants there is presented, as ro district No. 1, the affidavits .of one of the inspectors, two watchers, a poll-clerk and a ballot-clerk, and, as to district No. 2, the affidavits of •one inspector, two poll-clerks, one ballot-clerk and a watcher, all swearing positively that they were present during the canvass of the votes polled in their respective districts, and that no inspector of election, election officer or watcher declared his belief that any ballot or paster or paster ballot had been written upon or marked for identification. And they also swear that no ballots were marked with the words “ objected to, because marked for identification,” or words, in substance, to that effect. Under such circumstances, where there is on the one side but a single affidavit, and that upon information and belief, and opposed to it that of so many persons who were in a position to have personal knowledge, and who swear positively to the contrary, I am compelled to hold that, as a matter of fact, no objections were made at the time of the canvass of the votes, or immediately thereafter, that such ballots were marked for identification. But counsel for the relator says that the object of the statute was to have the ballots preserved for the court to act upon, and that, as the ballots have been, in fact, preserved, its object has been accomplished, although in an irregular manner ; that the law should be liberally construed. The law should be liberally construed to effect its purposes, among other things, to promote honest elections and an honest declaration of the.result. To sanction a practice such as is contended for here would, it seems to me, open the door to fraud and sharp practice, instead of promoting an honest declaration of the result.

The ballots, it appears, have been preserved. They have been preserved in violation of law. Having been voted, and no objection having been made to them as marked for identification, they should have been destroyed. (Laws of 1892, chap. 680, § 115.)

In providing for the preservation of ballots challenged as marked for identification, the law has provided certain safe-guards to identify the ballots and prevent imposition and fraud. In addition to-having written upon them the words heretofore mentioned, it also requires that each inspector shall sign his name thereto; the purpose of this is obvious. None of these safeguards appear in this case. '

The ballots were preserved, but how; they were, as appears from the aifidavits, left in public places, apparently in the buildings where the elections were held in the respective districts, the inspectors did not keep them in their personal possession. The danger of such action is obvious. Strangers could obtain possession of them, tamper with them, mutilate or mark them. Ballots not objected to at the time of being canvassed; preserved in violation of law; out of the possession of the officers; exposed to the dangers I have suggested, I do not think should now be attached to the statement of the canvass. A construction of the law that would permit it, would be lax not liberal; it would invite sharp practice. I do not mean to intimate that there has been any in this case, but if the procedure contended for is sanctioned now it invites sharp practice, and tampering with the ballots hereafter. In fact, the only inspector sworn from district. No. 2 swears that no such ballots, as above described, were voted in his district.

It appears that since the proceedings were commenced the chairman of the board of inspectors in each of said districts,, by permission of the board of canvassers, attached to the statement of canvass theretofore filed with the board ballots of the kind in question, alleged to have been marked for identification, and indorsed thereon in substance that they “were returned as objected to because marked for identification.” There had been no meeting of the several boards of inspectors, authorizing any such action to be taken, and it appears to have been the individual action of the chairman. As we have seen, the affidavits showed that the ballots were not marked during the canvass, or immediately thereafter, as objected to because marked for identification or with that in substance. That was the only time when such action could be legally taken.

The proceeding was wrong. There is no authority in law for it. A single inspector cannot act for the whole board; and under the facts, as they now appear, the board itself would have no right to> do what a single member of it has assumed to do. The alleged marked ballots so attached to the statements of result, since they were orignally filed, must be removed from such statements before being canvassed by the board of canvassers.

The several motions must be denied, with ten dohars costs in each proceeding. Let orders be entered accordingly.


author: Mayham, P. J.:

text:
    NANNIE L. VAUGHN, Respondent, v. MARY M. STRONG, as Administratrix of THOMAS J. STRONG, Deceased, Appellant.

      Evidence — a witness must give the language of a conversation, not his conclusions therefrom.

      . A witness, as to a conversation, must give the language used therein, and not his. own deductions or conclusions therefrom. It is for the court to pass upon the effect of the language used.
    Allowing a witness to state his deductions from a conversation, instead of compelling him to give the language used, is an error justifying the reversal of a judgment entered in the trial court, where it is not apparent that such admission did no harm or that it did not affect the result.
    Hence, in an action where the main contention was-as to whether defendant’s intestate received the money in controversy for the use of plaintiff, or in some other capacity, it was improper to permit the mother of the plaintiff, testifying as a witness in plaintiff’s behalf, to state, in answer to a question as to what was said on a certain occasion when intestate was present about the intestate’s holding the money, and what he was going to do with it; that “my brother was to take it in trust; * * * he thought he was capable of holding this money in trust for these three children, and then he said about the division between the three children.”

      Appeal by the defendant Mary M. Strong, as administratrix, etc., from a judgment of the Supreme Court, entered in the clerk’s office of the county of Washington on the 9th day of March, 1892, on the confirmation of a report of a referee, in favor of the plaintiff, for $1,157.25, with interest and costs, on a disputed claim presented to the defendant, as administratrix of Thomas J. Strong, deceased, and referred under the statute. (2 R. S., chap. 6, tit. 3, art. 2, § 36.)
    On the trial before the referee Annie Vaughn, the mother of the plaintiff, was sworn and testified as follows as a witness for the plaintiff:

      “ I live in Poughkeepsie; I am the widow of the late Edwin A. Vaughn, who died in April, 1871, leaving surviving two sons and a daughter, named William E., Nannie L. and Thomas S. Vaughn; sometime before his death I was at deceased’s office in the town of Sandy Hill; there was several gentlemen present; my brother, one of the firm of Hughes & Northup, perhaps both, Mr. Swift, Mr. George H. Beatties of Poughkeepsie and Mrs. Bailey, my sister (then Laura M. Strong); at that time there was money or a check passed over by Mr. Swift to my brother, Thomas J\ Strong, amounting to $1,750. Q. Was anything said at that time about for whose benefit this money was? A. Well, there was quite a little conversation about the children, and about how this should be divided. Q. I want to know first if there was anything said about for whose benefit this money was? A. Tes, sir, for the children. Q. For these children that you have mentioned? A. Tes, sir, for these three children. [Defendant objects to the question and moves to strike out the answer on the ground that the witness states her conclusions and does not state any conversation. Objection overruled, motion denied aud exception to the defendant.] This conversation about the money was principally between Mr. Strong and Mr. Swift; they were talking about the money; there was quite a little conversation, I believe; I couldn’t really remember all that was said pertaining to this division of the money. Q. State what you recollect of the conversation ? I recollect Mr. Swift said there was something for the daughter as well, and he would talk about the division, that is, as equally as possible. Q. What was said about Mr. Strong’s holding the money ? [Objected to by the defendant as leading. Objection overruled.] A. He was proposed to take it ill trust for these children, for them. [Defendant moves to strike out the answer as not being a part of the. conversation, and as a conclusion or deduction of the witness.] Q. You may state as near as you can; if you can’t tell the language, tell what was said about the money ? A. As I said, I wasn’t very well at the time; I don’t recollect everything that was said. Q. State what was said about Mr. Strong’s holding this money and what he was going to do with it? [Objected to by the defendant as leading and improper; that the witness should state the conversation in detail, and it is improper to call attention to some particular subject until her memory is exhausted as to the conversation. Objection overruled.] A. My brother was to take it in trust in preference to Mr. Swift; Mr. Swift thought he was capable as he did a good deal of business, of investing this money to better advantage, and my brother said he thought he was cajaable of holding this money in trust for these three children, and then he said about the division between the three children. [Defendant moves to strike out the last part of the answer, and so much of the answer to the question as does not give the conversation. Motion denied and exception to the defendant.] A. Division of the money was talked about that day when I was present. Q. Do you remember what was said about how it was to be divided ? [Objected to by the defendant, that the witness should state the conversation in detail and all she remembers of it, and that until her memory is exhausted the question is leading and improper. Objection overruled and exception to the defendant.] A. I recollect that they talked of the division, and how it should be divided, and to be divided as equally as possible; $650 to Will, the oldest; this was at the time I was to the office, and the only time in the presence of these gentlemen we talked there of the division.” * * *
    The referee found that the defendant, as administratrix of Thomas J. Strong, deceased, was indebted to the plaintiff in the sum of $500, with interest thereon from the 1st day of July, 1871, amounting in all to the sum of $1,157.25, together with costs. The referee’s report was confirmed at a Special Term, held in the county of Washington, and judgment ordered for the plaintiff accordingly.

      T. A. Lillie, for the appellant.

      W. Farrington, for the respondent.
   Mayham, P. J.:

Appeal from a judgment entered in favor of the plaintiff upon the report of a referee, on a disputed claim presented to the defendant, as administratrix of her deceased husband, Tilomas J. Strong, and referred, under the statute, with .the approval of the surrogate of Washington county.

The main contention in this case was whether the intestate received this money, in controversy, in trust for the use of plaintiff, or in some other capacity.

The capacity in which such money was received by him is the vital question in this case. Any essential error in the receipt of evidence on this point cannot be overlooked on this appeal. Viewed in this light, I think the question put to the witness, Annie Vaughn, and the answer to the same, and the refusal of the referee to strike the same out, on motion of defendant’s counsel, was error for which this judgment should be reversed.

The question allowed, if it did not call for the conclusion of the witness, still the answer was but her conclusion upon the main question to be found by the referee in the case as to whether or not intestate received this money in trust. The answer of the witness was: “ My brother was to take it in trust in preference t'o Mr. Swift. Mr. Swift thought he was capable, as he did a good deal of business, of investing this money to a better advantage, and my brother said he thought he was capable of holding this money in trust for these three children, and then he said about the division between the children.”

The defendant moved to strike out so much of this answer to the question as does not give the conversation. This motion was denied, and the defendant duly excepted.

This answer was given under the objection that the witness should only state the conversation.

To another question put by the plaintiffs counsel as to what was said about Strong (intestate) holding the money, which was also objected to, the witness answered: He was proposed to take it in trust for these children for them.” This answer the defendant moved to strike out as not being a part of the conversation, and as a conclusion or deduction of the witness, which motion was not granted.

We think that these answers substituted the conclusion of the witness, who manifestly has a strong bias for her children, who were plaintiffs, for that of the court, and allowed her to make her own.deductions from the conversation instead of giving the conversation, and leaving the court to draw the proper conclusion from it.

It was for the witness to give the language used in the conversation, and for the court to pass upon its effect.

This rule is elementary and is supported by,a uniform current of authorities. This rule is well stated in Rice on Evidence (p. 326) and in Teerpenning v. Corn Exchange Insurance Company (43 N.Y., 279). Allen, J., says: “As a rule, witnesses must state facts, and not draw conclusions or give opinions. It is the duty of the jury or the court to draw conclusions from the evidence and form opinions upon the facts proved.”

It is true that this rule does not apply in the case of expert testimony. But in such cases the expert testimony is received in the nature of facts from the necessity of the case.

But in the case last cited it is held that the rule above stated should not be extended or enlarged.

This is not a case where the appellate court can see that the illegal evidence did not harm the defendant or affect the result.

It is unnecessary, therefore, to examine the evidence further, or pass upon the weight of evidence offered by the respective parties for the purpose of determining the merits of the controversy.

The judgment should be reversed, the referee discharged, and a new trial ordered, costs to abide the event.

Putnam and Herrick, JJ., concurred.

Judgment reversed, referee discharged, new trial ordered, costs to abide event.


author: Mayham, P. J.: Putnam, J.:

text:
    NANNIE L. VAUGHN, Respondent, v. MARY M. STRONG, as Administratrix of THOMAS J. STRONG, Deceased, Appellant. THOMAS S. VAUGHN, Respondent, v. MARY M. STRONG, as Administratrix of THOMAS J. STRONG, Deceased, Appellant.

      Costs on a reference, under the statute, relating to disputed, claim against a decedent’s estate.

    , An administrator will not be charged with costs for resisting a claim referred, under the statute (2 R. S., chap. 6, tit. 3, art. 2, § 36), where he has acted with reason and good faith, although the claim be finally allowed.
    A reference, under the statute, of a disputed claim against a decedent’s estate, is a. special proceeding and not an action, and if costs are allowed, it is not proper to direct that they be the same as in an action. (Mayham, P. J.)
    The same rule should govern the granting of costs on a reference, under the statute, of a disputed claim against a decedent’s estate, as in an action against executors or administrators; and where such a claim is not unreasonably resisted the successful claimant should only recover his disbursements. (Putnam, J.)

      Semble, that section 3240 of the Code of Civil Procedure applies to a reference, under the statute, of a disputed claim against a decedent’s estate, and that when payment of the claim is unreasonably contested the court may award costs, in addition to the disbursements which the prevailing party is entitled to under section 317 of the Code of Procedure.
    Appeals by the defendant Mary M. Strong, as administratrix of Tilomas J. Strong, deceased, from orders, made at a Special Term of the Supreme Court, held in and for the county of Washington, allowing costs against her, as administratrix, on disputed claims against her intestate’s estate, which had been referred under the statute (2 R. S., chap. 6, tit. 3, art. 2, § 36), and for which judgments had been entered against her.

      T. A. Lillie, for the appellant.

      W. Farrington, for the respondents.
   Mayham, P. J.:

This is an appeal from an order of a Special Term of this court, allowing costs against the defendant, as administratrix, in each of the above special proceedings. The proceedings arose out of claims presented by the plaintiff to the administratrix against the estate of the intestate, which were rejected by the administratrix and referred under the statute. On the first trial before the referee the report .was in favor of the defendant, and, from the judgment entered thereon, an appeal was taken and the judgment reversed on the ground of error committed by the referee in the admission of evidence on the trial. On the second trial a like result was reached by the referee in favor of the defendant, and the judgment entered thereon was again reversed on the ground of the receipt of illegal evidence. On the third trial the report was in favor of the plaintiff, and on this trial the referee certifies that the claims were unreasonably resisted, and, on a motion for costs at Special Term, an order was made allowing costs in each of these cases.

Upon the affidavits used at the Special Term on this motion, and the papers and proceedings on which this motion was made, we cannot agree, either with the referee or the learned judge at Special Term, that these claims were unreasonably resisted.

The uncontradicted affidavit of the administratrix shows that she found, among the papers of the deceased, papers and documents, in his own handwriting, from which she had a right to assume that "the fund in dispute in these proceedings had been properly disbursed by him in his lifetime, and that none of the money received by him remained in his hands or estate at the time of his death.

Add to this the fact that, on two successive trials, two intelligent referees had found that the estate represented by the administratrix was not liable for these funds, and it is difficult to see how it can be said that the administratrix had unreasonably resisted the payment of this claim.

The law seems well settled that an administratrix will no.t be charged with costs for resisting' the allowance of a claim referred under the statute where such administrator has acted with reasonable and good faith in resisting the claim, although it be finally allowed.

In Johnson v. Myers, Executor, etc. (103 N. Y., 666), which arose on a disputed claim, the court, in discussing the question of costs against the executor, say: “We discover no trace of bad faith in the defense interposed, but much to justify the inquiry and examination which it compelled. For this reason we think costs should not have been awarded, and we, therefore, reverse the order appealed from.” And this seems to have been the rule under the revised statutes, and has not been changed by the Code. (Nicholson v. Showerman, 6 Wend., 554; Pursell v. Fry, 19 Hun, 595; Bailey v. Schmidt, 19 N. Y. St. Rep., 50; Fredenburg v. Biddlecome, 17 Week. Dig., 25; see, also, Redfield’s Surrogates Pr., 529, 530.)

Applying this rule to the case at bar, we do not see how costs, as such, can be charged against the defendant in these proceedings. But the learned judge, in the order allowing costs, directs that they shall be allowed the same as though it was an action in the Supreme Court from the commencement.

In this, we think, the learned judge erred. (Hallock v. Bacon, 45 N. Y. St. Rep., 489.) The reference in this case was a special proceeding, and not an action, and we do not see upon what principle the costs, as in ordinary actions, could be allowed, if at all. The judgment in which the costs in this order were inserted has been reversed at this term.

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

Herrick, J., concurred.

Putnam, J.:

The payment of plaintiff’s claim was not unreasonably resisted, and, therefore, plaintiff should only recover his disbursements. Perhaps the same rule should govern the granting of costs on a reference under the statute as in an action against executors and administrators, where costs are awarded because payment of a claim has been unreasonably resisted. (Civil Code, §§ 1835, 1836.) Had it appeared, however, that the payment of the claim in. suit was unreasonably resisted or neglected, I am not prepared to say that costs could not have been properly allowed under section 3240, Civil Code. It has been suggested that, although a reference under the statute is a special proceeding, section 3240 (supra) does not apply, because, as held in Larkins v. Maxon (103 N. Y., 680; 3 Birdseye Stat., 2614, 2615), section 317 of the Code of Procedure is yet in force, and that section regulates the award of costs on such a reference. By section 3250, Civil Code, it is provided that the title therein as to costs (including § 3240, ■supra) shall not affect any provision of any other unrepealed statute regulating the costs in any particular case. ‘ But, in fact, section 317 {supra) does not regulate the award of costs in such a case. It is silent upon that subject. It merely provides that the prevailing party may recover his referee’s fees and disbursements. It strikes me, therefore, that section 3240 {supra) may apply to such a reference, and that when the payment of a claim against a deceased party is unreasonably contested the court may award costs in addition to the disbursements which the prevailing party is entitled to under the provisions of section 317 of the Code of Procedure.

Putnam and Herrick, JJ., concurred.

Order reversed, with ten dollars costs and disbursements.

(&mzs DETERMINED IN THE FOURTH DEPARTMENT AT GENERAL TERM. jtoWMtf&w, 1892.


author: Hardin, P. J.:

text:
    JAMES M. PETRIE, Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.

      Personal injury at a, railroad crossing — contributory negligence — conflicting evidence as to the obstruction of a traveler’s view — repeal of section 7 of chapter 282 of Laws of 1854, requiring a bell or whistle to be sounded eighty rods before a crossing— error in a charge directly presented.

    Where, in an action against a railroad, company to recover the damages resulting from a personal injury received by reason of a collision with an engine at a crossing, there was a conflict of evidence as to whether there were standing cars which obstructed the plaintiff’s view in the direction in which he testified he looked when approaching the crossing, and from which the engine with which he collided came.

      Held, that the question was one for the jury, and that a refusal to direct a nonsuit for contributory negligence was proper, there being some evidence of care on the part of the plaintiff.
    The provision of section 7 of chapter 282 of the Laws of 1854, making it the duty of railroad companies to ring the engine bell or sound the whistle at least eighty rods before crossing a highway, having been repealed by chapter 593 of the Laws of 1886, an instruction in a charge to the jury, in an action against a railroad company for a personal injury, that the company was under obligation to ring its bell or sound its whistle at least eighty rods before reaching the crossing where the accident in question occurred, is an error, when such fact was an issue in the case, requiring the reversal of the judgment below, and the error 'is directly presented by a proper exception to the charge as made, and to the refusal of a request to charge to the contrary, although notice was not directly called to the fact that the act of 1854 was repealed.

      Lewis v. New York, Lake Brie and Western Railroad Company (128 N. Y., 496) and Hanev. Neto York, New Hcwen and Hartford Railroad Company (132 id., 160) distinguished.
    The language used in the saving clause (§ 181) of the general railroad law of 1890 (chapter 565 of Laws of 1890) was not intended to continue in force or revive the provisions of that part of section 7 of chapter 282 of the Laws of 1854, which was repealed by chapter 593 of the Laws of 1886.
    Section 421 of the Penal Code, which provides that a locomotive engineer shall be guilty of a misdemeanor if he fails to ring the bell or sound the whistle at least eighty rods from a highway grade crossing (except in cities), and to continue so to do, at intervals, until the highway is completely crossed, does not have the effect of imposing a duty upon the railroad corporation.
    Appeal by tbe defendant, tbe New York Central and Hudson River Railroad Company, from a judgment of tbe Supreme Court, entered in tbe office of tbe clerk of Herkimer county December 29, 1891, upon a verdict for the plaintiff for $1,850, rendered at tbe Herkimer Circuit, and from an order denying a motion for a new trial made upon tbe minutes.
    Plaintiff was injured while crossing tbe tracks of tbe defendant at Bellinger street, tbe most westerly street in tbe village of Herkimer, which passes north and south across the tracks of tbe defendant, which run east and west, by a passenger train coming from tbe west at 11.44 A. m. of August 2, 1890.

      G. P. Prescott, for tbe appellant.

      Pevendorf <& Smith, for tbe respondent.
   Hardin, P. J.:

"While the plaintiff was traveling along Bellinger street, situated in tbe westerly part of tbe village of Herkimer, with bis team, on tbe north side of tbe defendant’s tracks, be approached tbe fifth track and passed it, and passed over the fourth, third, second, and while passing over track number one bis vehicle was struck, and be received tbe injuries complained of, and for which be recovered a verdict of $1,850. West of Bellinger street, and on tbe northerly side of defendant’s road, freight cars were standing on a branch a short distance from tbe crossing. Some evidence was given tending to show that when the plaintiff approached the crossing he looked to see whether there were any trains approaching from the west, and that discovering none, he drove upon the crossing, and when upon track number one he heard the shriek of a whistle of an engine coming from the west, and he then slapped his horses with the lines and they jumped, but with not sufficient force to clear the vehicle from the engine, and the plaintiff received the injuries mentioned in the evidence, and was rendered unconscious. Evidence was given tending to show that, in addition to the standing cars on the branch, there was a coal-shed, coal office, and hen-house, which may have obstructed the view of the plaintiff. There was some evidence given by the defendant to the effect that there were no cars then on the branch. There being a conflict as to whether the cars were standing on the track which obstructed the view as claimed by the plaintiff, that question was one for the jury. (Bleyle v. N. Y. C. and H. R. R.R. Co., 11 N. Y. St. Rep., 585; S. C., affirmed, 113 N. Y., 626; Sherry v. N. Y. C. and H. R. R. R. Co., 104 id., 652.) In Greany v. The Long Island Railroad Company (101 N. Y., 419), it was held, viz.: “ Where, in such an action, there is any evidence, direct or inferential, of care or caution on the part of the person injured, the question as to contributory negligence is for the jury. While a person ajiproaching a crossing is bound to make all reasonable efforts to see, that a careful prudent man would make in like circumstances, his failure to see an approaching train does not, of itself, discharge the company from liability for negligence on its part in omitting the statutory signal.” In closing the opinion in that case, the learned judge, who delivered it, observed: Whether she looked exactly at the right moment, or in each direction in proper succession, or from the place most likely to afford information, cannot be determined as matter of law, and whether, upon the whole and in view of all the surrounding circumstances, including the negligent conduct of defendant, she exercised due care, was a question which the trial court could not properly decide for itself, but was bound to submit to the jury as one which they alone could answer.” Upon the whole evidence we are of the opinion that the question whether the plaintiff was guilty of contributory negligence or not was one for the jury, and that no error was committed in refusing to nonsuit the plaintiff.

(2) In the complaint it is averred that the train approached the crossing “ at a speed of more than forty miles an hour, and without ringing a bell or blowing a whistle, and, without any negligence on the part of the plaintiff, run the said engine, locomotive and train of cars against the plaintiff, and striking plaintiff and plaintiff’s wagon and team of horses, throwing plaintiff from the said wagon with great force, by reason all of which plaintiff was greatly injured,” etc. Upon the trial evidence was given to show that the bell was not rung or the whistle sounded during the distance next westerly eighty rods from the crossing. In the course of the charge delivered by the learned trial judge, he observed: “ There is one thing which it was its duty to do. One guard which the laws have provided for the public ás against these great railway corporations as they come to highways is a provision that eighty rods, at least, from the point of the crossing they shall either sound a whistle and continue to sound it at intervals from that time until they reach the crossing; or from this point, eighty rods away, they shall ring a bell and shall continue to ring it until the crossing is reached. That is an obligation on the part of this defendant. If the evidence satisfies you that this bell was not rung, then the defendant was guilty of omission of duty; and if you can infer that it was the want of that sound which led the plaintiff to go on as he did, then you will have a right to find for the plaintiff.” He also told the jury in a later portion of the charge as follows: “ It is only in case you can find from the evidence (weighing it with and bringing to bear upon it your best judgment and conscience) that the bell was not rung that you can find for the plaintiff. If, in this case, after weighing the evidence carefully, you come to the conclusion that the bell is not sufficiently proved not to have been rung, then your verdict will be for the defendant.” Near the close of the charge the defendant’s counsel requested the court to charge as follows : “ That the defendant was not bound by law to blow a whistle or sound a bell.” This the coiirt refused to charge, and to such refusal defendant duly excepted. At a later stage the defendant requested the court to charge “ That the defendant was not bound bylaw to blow a whistle or sound a bell;” this the court refused to charge, and to such, refusal the defendant duly excepted. Thereupon the defendant excepted “ to that part of the charge in which it is charged that the-defendant was under obligation to ring its bell or sound its wliistle, at least, eighty rods when approaching this crossing.”

Our attention is called to Lewis v. New York, Lake Erie and Western Railroad Company (123 N. Y., 496), in which case it was assumed that the statute of 1854 imposing upon railroad companies the duty of ringing a bell or blowing a whistle at eighty rods from a crossing and grade of the traveled public road, was repealed by the general repealing act of 1886. (Chap. 593 of the Laws of 1886.) And it is argued from that ease that inasmuch as the attention of the trial judge in the case in hand was not called explicitly to the fact that such repealing statute had been passed, that the exceptions may be disregarded. In the Lewis case, while the court’s attention was not called to the repeal of the provision, it was “ conceded the original statute was in force,” and the defendant during the trial of that case denied its application to the case then before the court. Under those circumstances it was held that the exception taken might be disregarded, and in the course of the opinion in that ease, Finch, J., says: “Whatever else may be said as to the purpose and effect of the exception, it is entirely clear that the existence of the statute was in no manner questioned or intended to be raised. Both court and counsel conceded its existence, and were quite excusable for not suspecting its repeal, and the sole controversy was as to its application >to the road in question. There is, therefore, no exception to the charge which reaches the point now sought to be made.” In the ease before us no such concession was made, on the contrary the learned counsel for the defendant, by an affirmative request, and an exception taken to the refusal thereof, and by except-, ing to the language of the charge in respect to the ringing of the bell or sounding the whistle, as given, seems to have squarely availed himself of the position that the court was in error in regard to the law relating to the subject of ringing a bell or sounding a whistle.

In Kane v. New York, New Haven and Hartford Railroad Company (132 N. Y., 160; S. C., 43 St. Rep., 491) it appears that a request was made to the court to charge that the defendant was not bound, as a matter of law, either to ring its bell or to blow its whistle, and that the request was refused and an exception was taken. In that case the plaintiff did not claim that the defendant was liable because of its failure to ring a bell or sound a whistle, but the sole ground of liability alleged in the complaint and proved on the trial was the mismanagement of the gates. Under such circumstances, it was said by the learned judge who delivered the opinion that, “ whether the bell was rung, not having been made an issue on the trial, and the defendant’s liability for the injury not being predicated upon the failure to ring a bell or sound a whistle, it was not error for the court to refuse to charge as requested.” But, as we have seen in this case, the plaintiff relied upon the allegation in the complaint that the bell was not rung and the whistle was not sounded, and upon that allegation gave evidence from which the jury were asked to find that the defendant had been guilty of negligence, thus making this case different from the Kane case. Nor do we think the exceptions taken by the defendant can be disregarded because of section 421 of the Penal Code. That section imposes a burden or duty upon an engineer “ driving a locomotive on any railway in this State,” and provides that he shall be guilty of a misdemeanor if he “ fails to ring the bell or sound the whistle upon such locomotive, or cause the same to be rung or sounded, at least, eighty rods from any place where such railway crosses a traveled road or street on the same level (except in cities), or to continue the ringing such bell or sounding such whistle at intervals, until such locomotive, and the train to which the locomotive is attached, shall have completely crossed such road or street.” That statute differs quite essentially from the provisions of the Laws of 1854, which imposes a duty upon the corporation itself. (See chap. 282 of the Laws of 1854, § 7, p. 611.)

Chapter 593 of the Laws of 1886 repealed the first paragraph of section 7 of chapter 282, namely, from the beginning of said section to and including the words by reason of such neglect.’ ” In chapter 565 of the Laws of 1890, that portion of chapter 282 of the Laws of 1854 embraced in sections 4 to 15, both inclusive, and sections 17 and 18, were repealed, and the language found in section 181 of the act of 1890 was not intended to continue in force or revive the provisions of that part of section 7 of the Laws of 1854, which was repealed by the statute of 1886. (See Session Laws of 1890, p. 1134.)

We think that part of the charge which instructed the jury that it was the duty of the railroad company to ring its bell or sound its whistle eighty rods before approaching the crossing in question, to which, an exception was taken, was erroneous, and that the exception presents an error requiring a reversal of the order and judgment.

Martin and Merwin, JJ., concurred.

Judgment and order reversed on the exceptions and a new trial ordered, with costs to abide the event.


author: Martin, J.:

text:
    HENRY M. LAWSON, Respondent, v. JAMES HILL and Another, Appellants.

      Code of Civil Procedure, sec. 3255 — costs as a condition of the postponement of a trial from one term to another — witness’ fees.

    Section 3255 of the Code of Civil Procedure, which limits the imposition of costs, as a condition of adjourning a trial, to ten dollars, besides the fees of witnesses and the taxable disbursements already made or incurred which are rendered ineffectual by the adjournment, applies to the postponement of a trial from one term to another, as well as- to a postponement to a later day in the same term. An affidavit in proof of witness’ fees, for which payment is claimed as a condition imposed by an order granting a postponement of a trial, which fails to show when the witnesses named were subpmnaed, their residences, the distance traveled by each, that the party had paid out or become liable for the fees claimed, and that they were rendered ineffectual by the postponement, is insufficient to justify the clerk in taxing such witness’ fees.
    Appeal by the defendants James Hill and others from an order of tbe Oneida Special Term, entered in the Oneida county clerk’s office June 11, 1892, denying defendants’ motion to review the clerk’s taxation of costs under an order adjourning the cause until a subsequent term.
    At the circuit, it was ordered “ that this case go over this term, and that defendants pay plaintiff, or his attorneys, term fee, and all fees of witnesses subpoenaed to attend this term by or on behalf of the plaintiff, and all taxable disbursements of this term, and that such costs and disbursements be so paid within ten days from taxation or adjustment thereof by the clerk.”
    The plaintiff subsequently, proceeded to have the costs and disbursements awarded by the order taxed by the clerk of Oneida county. They were taxed at the sum of seventy-six dollars and forty-four c§nts, of which amount sixty-five dollars and ninety-four cents were for witness’ fees. The only proof of disbursements or witness’ fees was the affidavit of the plaintiff, which was as follows : “ Henry M. Lawson, being duly sworn, says that he is the plaintiff; that deponent personally served a subpoena in the above-entitled action on the following named persons, at the time and places hereinafter stated, to wit, on Wm. P. Chase, at Rochester, N. Y., one hundred and thirty-four miles from court-house in Utica, N. Y. ; on Wm. Gilmore, at Rochester, N. Y., one hundred and thirty-four miles from court-house in Utica, N. Y.; on Lewis Wells, at Pavilion, N. Y., one hundred and sixty-seven miles from court-house in Utica, N. Y., on Daniel Allen, at Pavilion, N. Y., one hundred and sixty-seven miles from court-house in Utica, N. Y., and on George Tomlinson, at Perry, H. Y., one hundred and ninety-one miles from court-house in Utica, N. Y., for the present circuit term of court now being held at Utica for one day, to wit, May 10, 1892; that each of said persons are material and necessary witnesses for deponent upon the trial of this action, and their fees, respectively, are truly set opposite their respective names, respectively, to the best of deponent’s knowledge.”
    On the taxation the defendants made the following objection, among others, to the taxation: “Third. Defendants object to taxation against them of any of the £ witness’ fees ’ in plaintiff’s said bill, on the grounds that the affidavit upon or accompanying the same is insufficient, as a basis, for taxing the amount or amounts claimed; that no affidavit or proof is presented showing, or tending to show or establish that the £ witness’ fees ’ claimed were, or that any part of them was ever, in fact, paid or disbursed by or in behalf of the plaintiff; that no affidavit or proof is presented tending to show or establish that the amount or amounts claimed for witness’ fees were ever actually disbursed; that it does not appear by any proofs or affidavit that said alleged £ witness fees ’ were necessarily incurred as disbursements herein, nor that they were or are reasonable in amount; nor does it appear that each and every of' the persons named were necessary and material witnesses for the plaintiff, and nothing was or is specified or stated so showing; that no item or items of disbursements in a bill of costs can be allowed or taxed unless it or they appear, by affidavit or legal proofs, to have been necessarily and actually incurred, and that no such affidavit, or legal proof is here presented as to the disbursements of £ witness’ fees ’ herein.” This objection was overruled by the clerk, and the defendants excepted. Subsequently, the defendants made a motion, at Special Term, to review such taxation, and to have the items objected to stricken from the bill of costs as taxed, which motion was denied.

      S. M. Lindsley, for the appellants.

      Henry F. do James Coupe, for the resjiondent.
   Martin, J.:

This court held in the case of Inderlied v. Whaley (26 N. Y. St. Rep., 7) that where the costs of a term were required to be paid by an order postponing a trial, the disbursements rendered ineffectual by such postponement, including witness’ fees paid for the term, which could not be recovered back, were a part of such costs. It was also held that, to authorize an allowance for witness’ fees in such a case, the affidavit used before the taxing officer must show the residence of each witness, the distance traveled, that the party claiming them had paid, or was liable for such fees, and that the sums paid were rendered ineffectual by such postponement.

Section 3255 of the Code of Civil Procedure limits the power of the court on adjourning a trial to requiring the party applying for the adjournment, as a condition thereof, to pay ten dollars costs, the fees of witnesses and the taxable disbursements rendered ineffectual by the adjournment. (Kennedy v. Wood, 54 Hun, 14.)

We do not think the respondent’s claim that putting the case over the term was not an adjournment within the meaning of section 3255 can be sustained. That that section was intended to apply to postponement of a trial from one term to another, as well as a postponement to a later day in the same term, we have no doubt. Hence, it follows that the conditions imposed could be none other than those mentioned in that section, and the plaintiff did not, by virtue of the order postponing the trial in this case, become entitled to any fees or disbursements, except those mentioned in section 3255.

The important question on this appeal is, whether the affidavit of the plaintiff was sufficient to justify the clerk in taxing the witness’ fees allowed. The plaintiff’s affidavit failed to show when the witnesses named therein wer.e subpoenaed, and, therefore, failed to show that the fees were a disbursement already paid or incurred when the order to postpone was granted; nor did the affidavit show the residence of the witnesses, the distance traveled by each ; that the plaintiff had paid out or become liable for the fees claimed, or that they were rendered ineffectual by the postponement.

We think the plaintiff’s affidavit was insufficient to justify the clerk in taxing the witness’ fees allowed; that he erred in overruling the defendants’ objection to the sufficiency of the plaintiff’s affidavit; that the order appealed from should be reversed, an order granted directing a new taxation of plaintiff’s costs and disbursements before the clerk of Oneida county, and upon such retaxation either jiarty should have leave to furnish such additional affidavits and papers as he or they may deem proper and necessary.

Hardin, P. J., concurred; Merwin, J., not sitting.

Order of Special Term reversed, with ten dollars costs and disbursements of this appeal, and motion for new taxation before the clerk of Oneida county granted, with leave to use upon the new taxation such further affidavits or papers as either party shall deem necessary.


text:
    NETTIE A. HUNTLEY, Appellant, v. BATTESE ReVOIR, Respondent, Impleaded with DEMAS L. GROVER, ELLEN P. GROVER, his wife, THEODORE F. HUNTLEY and JAMES A. McFARRAN,

      Mortgage assumed by a grantee of premises — the land is primarily liable — payment by the grantee does not discharge the mortgage — when it retains its lien.

    Where premises are conveyed subject to a mortgage, and the deed contains a covenant by which the grantee assumes and agrees to pay the mortgage debt, the land is the primary fund for its payment; the purpose of the covenant is to indemnify the grantor for any deficiency that may arise on the sale of the mortgaged premises, and the liability of the purchaser is that of indemnitor as between himself and the grantor.

      Hence, the grantee of premises subject to a mortgage, which he assumes and covenants to pay, not being bound to pay the mortgage in exoneration of the land, which is the primary fund for its payment, does not, by paying the mortgage debt and taking an assignment thereof to his wife, merge the mortgage in his title, and thus discharge the lien of the mortgage so that he cannot keep it alive by the assignment thereof to his wife for his benefit, where it clearly appears that it was not the intention of the parties to the transaction that the jjayment should operate as a satisfaction of the mortgage.
    A mortgage so assigned, after payment of the mortgage debt by the grantee of the premises, retains its lien, so that, by foreclosure thereof, the lien of a judgment subsequent to the mortgage, but prior to the conveyance of the premises to the grantee who has paid the mortgage debt, is cut off.
    It is only where the person paying the mortgage debt is the principal and primary debtor, and is liable personally and primarily for the debt secured, that he cannot prevent the incumbrance from merging where an assignment is taken to a third person for his benefit.
    Appeal by the plaintiff Nettie A. Huntley from a judgment of the Supreme Court, entered in the office of the clerk of Jefferson county on the 4th day of April, 1892, dismissing the plaintiff’s complaint, and for costs, in favor of the defendant Battese Be Voir and against the plaintiff, on the report of a referee.

      M. M. Waters, for the appellant.

      L. E. Fuller, for the respondent.
   Martin, J.:

This was a suit in equity to foreclose a mortgage. The facts, as found by the referee, briefly stated, were: The defendant Demás L. Grover was the owner of the premises described in the plaintiff’s complaint, and, on August 5, 1889, he executed and delivered to Frank M. Weatlierwax the bond and mortgage therein mentioned to secure the payment of the sum of $300 and interest one year from date. The mortgage was duly recorded in Jefferson county, where the premises were situated, August 6, 1889. The money thus secured was borrowed by Grover for the purpose of building a cottage on a portion of the premises described, but was not used for that purpose. The defendant Huntley acted as agent in procuring the loan. When Mrs. Weatlierwax learned that the money had not been so applied she saw Pluntley about it, and on January 15,1890, he and the defendant McFarran, to allay her fears, guaranteed the collection of said bond and mortgage. Afterwards, and on April 2, 1890, Grover and wife, by warranty deed, conveyed tbe premises to the defendant Huntley. The deed was recorded in Jefferson county April 5, 1890. This deed contained a clause by which the defendant Huntley agreed to assume and pay the mortgage as a part of the consideration for such deed.

On August 26, 1889, Eugene Petit obtained a judgment- against Demas L. Grover for $207.21, which was assigned to the defendant Batiese ReVoir by an assignment which recites that $143.40 was due thereon January 14, 1889. The assignment was filed in Jefferson county August 27, 1889, and a transcript of the judgment was filed therein on the same day. There is unpaid thereon the amount last mentioned. This judgment became a lien on the premises in question prior to the sale by Grover. The mortgage in suit became due August 6, 1890, but was not paid by Huntley when due, although he was then, and since has been, financially able to pay it. About December, 1890, Huntley wes informed of the ReVoir judgment, and that an execution would be issued against the premises unless it was paid. After receiving this information Huntley raised money on his own note, and used it to pay the Weatherwax mortgage in full. Instead of taking a satisfaction he procured an •assignment of the same to his wife, the plaintiff in this action, which assignment was recorded in Jefferson county January 3,1891. The money used to pay the mortgage was the money of T. E. Huntley.. At the time the money was paid and assignment taken Huntley knew that a foreclosure of the mortgage would operate to cut off the lien of ReVoir’s judgment, and procured the assignment thereof to his wife for the purpose, partly at least, of having the mortgage foreclosed to cut off that judgment. Soon after the assignment was filed in the clerk’s office the plaintiff commenced this action to foreclose the mortgage assigned to her.

As conclusions of law the referee, in effect, held: 1. That when Huntley received from Grover and wife a deed of the premises in question, and assumed and agreed to pay the Weatherwax mortgage as part of the purchase-price, the lots became the primary fund for the payment of the mortgage, and Huntley the principal and primary debtor, bound to pay and discharge the mortgage debt. 2. That when Huntley with his own monéy paid or caused the mortgage to be paid, the debt was paid and satisfied and the mortgage security was likewise paid, satisfied and discharged, and the lien of the mortgage on the premises was wholly discharged, and the mortgage title of said Huntley w’as merged and lost in his fee to said lots. 3. That Huntley, being principally and primarily liable and bound to pay the mortgage, could not, on paying the same, keep the mortgage security alive and preserve the lien thereof on the premises by taking an assignment to his wife. 4. That when Huntley paid the mortgage he obtained thereby no equity which entitled him to preserve the lien of the mortgage, for the purpose of foreclosing the same to cut off the lien of a bona ficle junior incumbrancer whose incumbrance was prior to the purchase by Huntley, and of which he had notice before paying the mortgage. 5. That when the mortgage passed to the plaintiff by the assignment it was paid and discharged and the lien on the premises was lost and the plaintiff was not entitled to maintain an action to foreclose the mortgage. 6. That the defendant ReYoir was entitled to judgment dismissing the complaint in this action, with costs, and judgment was ordered accordingly.

The evidence as well as the findings of the referee render it manifest that it was not the intention of Huntley, the plaintiff, or Mrs. Weatherwax, to pay or discharge the mortgage in suit, but it was their intention to continue it in force and thus transfer it to the plaintiff. That there was no intention to extinguish it is obvious from the transaction between them and the assignment of the mortgage. (James v. Morey, 2 Cow., 246; Mickles v. Townsend, 18 N. Y., 582.)

The ground upon which the respondent seeks to uphold the judgment is, that when the defendant Huntley accepted the deed from Grover, and thereby assumed and agreed to pay the mortgage as a part of the purchase-price, he became the principal debtor as to the mortgage debt, was obliged to pay it, and when he did pay it, it became merged in his title, and the lien of the mortgage was discharged, as he could not keep it alive by assignment to a third person. On the other hand, the appellant contends that no duty was imposed upon the defendant Huntley to pay the mortgage in exoneration of the land, but that the land remained the primary fund for the payment of the mortgage debt. Thus the real question to be determined is whether, by reason of the provisions in liis deed to assume and -pay the mortgage as a part of the purchase-price of the premises, the defendant Huntley became personally and primarily liable to pay the mortgage debt without recourse to, and in exoneration of, the land, or whether the land remained the primary fund for its payment, with an additional liability on the part of the defendant Huntley to indemnify his grantor against any deficiency that might arise on the sale of the mortgaged premises.

"Whatever the rule may be elsewhere, we think it is the settled doctrine of equity in this State, that where premises are conveyed subject to a mortgage, and the deed contains a covenant by which the grantee assumes and agrees to pay the mortgage debt, the land is the primary fund for its payment. The purpose of the covenant is to indemnify the grantor for any deficiency that may arise on the sale of the mortgaged premises, and the liability of the purchaser is that of indemnitor as between himself and the grantor.

This question arose, and was considered by Chancellor Kent in Cumberland v. Codrington (3 Johns. Ch., 229), where, after a careful examination of many of the English and American authorities bearing upon the question, it w^as held that where a person takes a conveyance of land, subject to a mortgage, and covenants to indemnify the grantor against the mortgage, the land is the primary fund for its payment, and that this is so even where the purchaser has rendered himself liable at law to the mortgagee or creditor for the debt. The doctrine of that case was also recognized in King v. Whitely (Hoff. Ch., 477).

In Halsey v. Reed (9 Paige, 446), it was held that where a mortgagor sells and conveys the equity of redemption, subject to the mortgage, the purchaser retains enough of the purchase-price to satisfy the mortgage, and agrees to pay it, the mortgagor and purchaser stand in the relation of principal and surety, the latter as security for the former to the extent of the mortgage debt, and the premises are primarily chargeable with the payment of the mortgage. The principle of that case was affirmed in Russell v. Pistor (7 N. Y., 171, 174); Bowne v. Bynde (91 id., 92, 96); Rubens v. Prindle (44 Barb., 345).

In Slauson v. Watkins (86 N. Y., 597) it was held that such an agreement was, in substance, an agreement to indemnify the mortgagor, and the effect of the transaction was to make the mortgaged preihises primarily liable for the debt, and the grantee the principal debtor as between himself and his grantor, but that until there was a sale of the premises leaving a deficiency, no action could be maintained against the purchaser.

In the Matter of Wilbur v. Warren (104 N. Y., 192) it was held that one who purchases land subject to a mortgage makes the land thereby the primary fund for the payment of the mortgage debt, although the deed contains a covenant on the part of the grantee to pay it. The covenant is to indemnify the grantor against the contingency that the land may not bring enough to pay such debt.

In discussing this question in that case, Andrews, J., said: “It is the settled doctrine in equity that one who purchases land subject to a mortgage makes the land thereby the primary fund for the payment of the mortgage debt. It is otherwise, as between mortgagor and mortgagee, when the bond of the mortgagor accompanies the mortgage in the absence of any statute regulation. In that case the bond is the principal thing and the mortgage is the incident. The debt is represented by the bond, and the mortgage is a collateral security for the personal obligation. But, on a conveyance by the mortgagor subject to the mortgage, the plain meaning of the transaction between the parties is, that the land shall pay the mortgage debt in exoneration of the personal liability of the mortgagor on his bond, and in equity, on such a conveyance, the land is treated as the principal debtor, and the mortgagor as surety for the mortgage debt. If the deed, in addition, contains a covenant on the part of the grantee to pay the mortgage, the land still remains the primary fund for the payment of the mortgage. * * * This is in accordance also with the real intent of the transaction. The essential purpose of such a covenant is to indemnify the mortgagor against the contingency that the land may not bring enough to pay the mortgage debt, and thereby leave him exposed to a claim for a deficiency. (Halsey v. Reed, 9 Paige 446.) Although the covenant may be in the form of a direct undertaking to pay the mortgage debt, and not a mere covenant of indemnity, yet that is its essential character. The covenant is treated as an additional security for the mortgage debt, and inures as a promise to the mortgagee, yet it is settled that it will support an action by the mortgagee only wlien the immediate grantor of the covenantor is himself liable for the mortgage debt. * * * The giving of a covenant by the grantee does not work a novation of the mortgage debt. It does not make the debt his own, except in respect to the estate (Butler v. Butler, 5 Ves., 534), and his liability is auxiliary and not primary.”

Assuming, as we must, the principle established by the cases cited, it follows that Huntley was in no way bound to pay the mortgage debt in exonoration of the land which was the primary fund for its payment, and, therefore, the defendant ReYoir, as judgment-creditor, had no right to insist that the payment was in satisfaction of the mortgage, when it clearly appeared that it was not the intention of the parties to that transaction. It is only where the person paying the mortgage debt is the principal and primary debtor, and is liable personally and primarily for the debt secured, that he cannot prevent the incumbrance from merging where an assignment is taken to a third person for his benefit. Hence, we are of the opinion that the learned referee’s conclusions of law were erroneous, and that he erred in directing a judgment for the defendant ReYoir.

For these errors, we think, the judgment should be reversed.

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

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


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    HARRIET WALSH, Appellant, v. PATRICK WALSH and Others, Respondents.

      Mutual benefit association — who are the beneficiaries of a death fund on a failure of designation— legal heirs” construed — wife of deceased member included.

    In an action on a certificate of membersliip in a mutual benefit association, in the-nature of a policy of life insurance, it appeared tliat tlie beneficiary designated in the certificate had died before the member, but no change in the designation had ever been made, and that the member thereafter died leaving a wife and brother and sisters.
    The act of incorporation of the association, after declaring that one of its objects was to assist the ‘ families ” of deceased members, authorized it to accumulate

      a fund to be paid over “ to the families, beirs or representatives of deceased members, or to such, person or persons as such deceased members may, while living, have directed;” and its by-laws provided, that “in case of a failure of, or imperfect designation, then the amount shall be paid to the legal heirs of the deceased member.”

      Held, that the words “legal heirs” in the by-laws, construed in connection with the expressed object of the association, and with the words “ families, heirs or representatives,” in the act of incorporation, were intended to describe the person or persons who would take in cases of intestacy, and hence included the wife of the deceased member.
    A ¡'peat, by the plaintiff Harriet Walsh from a judgment of the Supreme Court, entered in the office of the clerk of Chemung county February 16, 1892, adjudging that the $2,000 deposited in court and paid under a certificate issued by the Catholic Mutual Benefit Association belonged to certain of the defendants, the heirs-at-law of William Walsh, deceased, and that the plaintiff had no cause of action therein.
    The action was tried before a court without a' jury, and the findings of fact made by the trial judge were substantially as follows: That the Catholic Mutual Benefit Association was organized under chapter 496 of the Laws of 1S79; that at the time stated in the complaint there was in existence in the city of Elmira a branch known as branch No. 51; that the general laws of the association provided, “ on or before sixty days after due notice and proofs of death of a member in good standing shall have been received, the amount as set forth in the Beneficiary Certificate of said deceased shall be paid to the person or persons designated therein, or, in case of failure of, or imperfect designation, then the amount shall be paid to the legal heirs of the deceased member;” that William Walsh was a resident of Elmira, became a member of the Elmira branch of said association September, 1879, and remained a member in good standing until bis death; that when he became a member a certificate of insurance was issued to him, entitling him to participate in the beneficiary fund of the association to the amount of two thousand dollars, “ which sum shall, at bis death, be paid to bis mother, Mary Walsh;” that this certificate was in force and valid at the time of Walsh’s death;'that the beneficiary named died August 17, 1887; that William Walsh was married to the plaintiff in June, 1888, and died March 20, 1890; that no change in the designation of the beneficiary was ever made; that there was no issue of the marriage of Walsh to the plaintiff, and he left him surviving no parent or descendant; and that the defendants are his brothers and sisters, and were all living at the time he became a member of the association.
    As conclusions of law the court held: “ 1. At the time of the maturity of the claim, under the certificate of insurance, there was a failure of designation of the beneficiary to whom such insurance should be paid. 2. The amount due under the said certificate of insurance was, at the time of the commencement of this action, and is now payable to the legal heirs of William Walsh, deceased. 3. The above-named defendants, the brothers and sisters of the said William Walsh, deceased, are his sole legal heirs. A The plaintiff has no cause of action herein. . 5. The interpleaded defendants herein are entitled to the judgment of this court directing the payment to them of the sum payable under the said certificate of insurance.”
    The statute incorporating the Supreme Council of the Catholic Mutual Benefit Association contained the following provisions:
    “ Sec. 5. The object of this corporation shall be to improve the moral, mental and social condition of its members, and to educate them in integrity, sobriety and frugality, to endeavor to make them contented with their position in life, and to aid and assist members, or their families, in case of death.

      “ Sec. 6. It shall be lawful for this corporation to create, hold, manage and disburse a beneficiary fund sufficient to pay all losses and expenses incident to the corporation, and for the relief of members and their families of the branches and grand councils, under the jurisdiction of this corporation, under such regulation as may be adopted by said corporation.
    “ Sec. 7. Such beneficiary fund as may be ordained suitable by said corporation may be set apart and provided to be paid over to the families, heirs or representatives of deceased members, or to such person or persons as such deceased members may, while living, have directed; and the collecting, management and disbursement of the same, as well as the person or persons to whom, and the manner and time in which the same shall be paid on the death of a member, shall be regulated and controlled by the constitution, by-laws, rules and regulations of the corporation; and such beneficiary fund so provided and paid shall be exempt from executions, and shall not be liable to be seized, taken or appropriated by any legal or equitable process, to pay any debt of said deceased member; diocesan beneficiary districts maybe set. apart from time to time, and shall be governed by this law. The general and beneficiary accounts of said corporation, and those of its branches, grand councils and districts, shall be kept entirely and distinctly apart in separate books and accounts.” *

      Frederick OolUn, for the appellant.
    Babcock, Baxter db Gibson, for the respondents.
   Martin, J.:

This action was upon a certificate of membership, which was in the nature of a policy of life insurance, issued to William Walsh by the Catholic Mutual Benefit Association. The action was originally brought by the plaintiff, who was the widow and administratrix of the assured, against the association. Subsequently, the association paid the amount due upon the certificate into court, and by an order of interpleader the brothers and sisters of the decedent were made defendants. The action seems.to have been tried upon the pleadings, although, by stipulation, either party was permitted to refer to, or read in evidence any part of the constitution or by-laws of the association.

The question involved on this appeal is whether the plaintiff was entitled to the $2,000 jiaid on this certificate, or whether it belonged to the defendants. An examination of the statute incorporating the association, discloses that its real and avowed purpose was to aid, assist and relieve members and their families during the life of the members, and aid and assist their families after death. (Laws of 1879, chap. 496, §§ 5, 6.) After declaring such to be the purpose and object of the association, the statute authorizes it to accumulate a fund which may be set apart and paid over “ to the families, heirs or representatives of deceased members, or to such person or persons as such deceased members may, while living, have directed.”

In Bishop v. Grand Lodge of E. O. of M. A. (112 N. Y., 627), which was a case involving the construction of a phrase, in all respects, like this, it was held that “the families, heirs or legal representatives ” meant and included those who would take such property in cases of intestacy.

The doctrine of that case is decisive of this, unless the by-laws of the association have changed the persons entitled to the benefit under such a certificate, where no designation has been made. The provision relied upon to effect that change is, that, “ in case of a failure of or imperfect designation, then the amount shall be paid to the legal hems of the deceased member.” The words “legal heirs ” are inapt and inappropriate when applied to such property, hence it is obvious that they were not used in their strict legal sense. Nor do we think they were intended to include only the “next of kin.” As we have already seen, the purpose of the association was to aid, assist and relieve members and their families during the life of the members, and upon their death to aid and assist their families. Manifestly, this by-law was established in contemplation of the purposes of the association, and with an intent to carry them into effect. We cannot believe that, after the purposes of the association to aid and assist the families of deceased members had been so carefully and plainly stated, the association intended by its by-laws to so change that purpose as to aid only their heirs-at-law or next of kin, and thus ignore the wife of a member, who, with him, when living, constituted his family. The words “legal heirs” should be construed with reference to the general purpose of the association, and, when so construed, were, we think, intended to describe the person or persons who would take such property in cases of intestacy. This construction is consistent with the statute, seems to give effect to the real purpose of the association, and is, we think, sustained by the authorities. (Hannigan v. Ingraham, 55 Hun, 257; Lawton v. Corlies, 127 N. Y., 100, 106; Heath v. Hewitt, Id., 166; Griswold v. Sawyer, 125 id., 411; Woodward v. James, 115 id., 346; Brooklyn M. Belief Assn. v. Hanson, 53 Hun, 149.)

The judgment must be reversed and a new trial ordered, with costs to abide the event.

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

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