author: Herrick, J.:

text:
    Catharine S. Baker, as Administratrix, etc., of Warren M. Baker, Deceased, Respondent, v. John H. Sutton and Another, Appellants.

      Bill of particular’s — its office and effect — it should not contain a general statement.

    The office of a bill of particulars is to inform the adverse party of the specific charges made against him, so that he may know exactly what he must prepare to defend, and it limits the party serving the bill to proof of the matters therein specified.
    Where a bill of particulars contained three specifications, and by its fourth clause alleged “That the said defendants were negligent in other respects whereby plaintiffs intestate’s death was caused,” the court will order a further bill of particulars upon the ground that such a general statement, to which the plaintiff’s proof upon tlie trial might "be solely directed, gave the defendants no notice whatever of the issues which they would he called upon to meet upon the trial of the action.
    Appeal by tlie defendants, John H. Sutton and another, from an order of tlie Supreme Court, made at the Ulster Special Term and entered in the office of the clerk of the county of Albany on the 21st day of March, 1895, denying a motion made by the defendants to compel the plaintiff to serve a further bill of particulars, specifying what carelessness, recklessness or negligence of the defendants, or either of them, caused the death of the plaintiff’s intestate, or the accident which resulted in his death.
    The action was brought to recover the damages resulting from the defendants’ alleged negligence. The complaint alleged in general words that the plaintiff’s intestate, Warren M. Baker, came to his death while drawing sand and clay on the premises of the defendants in the town of Ooeymans, Albany county, by reason of a bank of sand or clay at which Baker was working, sliding or falling upon him, whereby he was suffocated. A bill of particulars was ordered and was served. It contained three specifications as to the alleged negligence of the defendants, and then followed a fourth general allegation. Because of this latter clause the defendants moved for a further bill of particulars, and from the denial of that motion this appeal was taken.

      Frank II. Osborn, for the appellants.

      Amasa J. Pa/rker, Jr., for the respondent.
   Herrick, J.:

The office of a bill of particulars is to apprise the adverse party of the specific charges made against him, so that he may know exactly what he must prepare to defend. It serves as an amplification of the pleading, and limits the party making it to proof of the things specified.

The fourth clause of plaintiff’s bill, “ That the said defendants were negligent in other respects whereby plaintiff’s intestate’s death was caused,” obviously does not give the defendants any notice of what they must be prepared to meet at the trial; under it no limitation can be imposed as to proof upon the trial. It simply apprises tlie defendants that in addition to the matters set forth in the complaint, and in the preceding clauses of the bill, there are other acts of negligence which she does not in anywise specify, which caused the intestate’s death. The little good there is in the preceding clauses is absolutely destroyed by the fourth.

If it is held good, then when tlie trial is had tlie plaintiff need not give any proof as to the particulars set forth in the preceding clauses of the bill, but give evidence under the last clause, which gives no information to the defendants, and which is more general and indefinite than the complaint.

The order should be reversed, and an order for a further bill -of particulars granted, with ten dollars cost of motion, and costs and disbursements of this appeal.

Putnam, J., concurred.

Order reversed and order for a further bill of particulars granted, with ten dollars costs of motion, together with costs and disbursements of this appeal.


source: Caselaw Access Project

license: Public Domain

text:
    Stanley H. Bevins, Respondent, v. Annie Albro, Appellant. Two Cases.

      Costs — the property of the attorney — not subject to offsets by adverse pa/rty— attorney’s lien under section 66 of the Code of Civil Procedw'e.

    Costs recovered in an action belong to the attorney without any assignment, and the claim of the attorney thereto is superior to the right of the adverse party in the action, to set off claims against the successful one.
    The provisions of section 66 of the Code of Civil Procedure, which declare that from the commencement of an action, or the service of an answer containing a counterclaim, the attorney who appears for a party has a lien upon his client’s cause of action or counterclaim, which attaches as soon as it is asserted, were not intended as a limitation upon the lien of an attorney for his costs, but were meant as an additional security to him in attaching his lien to the cause of action before the latter was perfected into a judgment.
    The provision is for the benefit of an attorney, whether or not he pleads a counterclaim, the only difference being that where the defendant has no cause of action to plead by way of counterclaim, the provision of the Code does not • benefit him before judgment.
    .After a judgment for the defendant for costs, there is something to which, the lien of his attorney can and to which it does attach.

      Appeal by the defendant, Annie Albro, from an order of the Supreme Court, made at the Montgomery Special Term and entered in the office of the clerk of the county of Warren on the 26th day of January, 1895, directing that all proceedings upon an execution issued in this action be stayed until the determination of another action, which had been appealed to the Saratoga County Court; and further, that if the judgment in the latter action was affirmed in the Saratoga County Court, then that the judgment in this action be set off against the.judgment in that action.
    The plaintiff, an attorney, brought the present action in this court against the defendant for professional services. He was defeated, and judgment was entered against him for $81.80 costs. Subsequently he began another action in a Justice’s Court against the same defendant for the same services. It appears that upon that trial no evidence was offered by the defendant except the judgment roll in this action. The plaintiff succeeded in the Justice’s Court and obtained a judgment for $163.55 damages and costs, from which the defendant appealed, upon questions of law, to the Saratoga County Court, where the appeal is pending undetermined.
    Subsequently the defendant’s attorney issued execution in this action upon the judgment for costs. Thereupon the plaintiff’s attorney obtained the order from which the defendant now appeals.

      B- M. Richards and G. ££. Stfwrges, for the appellant.

      I/yman JenMns, for the respondent.
   Herrick, J.:

We have heretofore held that the costs recovered in an action belong to the attorney, without any assignment; and that the claim of the attorney thereto is superior to the right of the adverse party in the action to set off claims against the successful party. (Delaney v. Miller, 84 Hun. 244.)

A distinction is sought to be made between an attorney for a plaintiff and an attorney for a defendant, where no counterclaim is contained in the answer. And it is claimed that, under section 66 of the Code of Civil Procedure, attorneys for a defendant only have liens for costs, or are entitled thereto, when the answer contains a counterclaim.

Section 66 was not intended as a limitation upon liens of attorneys for tlieir costs, but as an extension; it was intended as an additional security to them. By it the lien is made to attach to the cause of action, whether that cause of action is set forth in a complaint, or in an answer, by way of counterclaim ; and it attaches just as soon as it is asserted; in the case of a plaintiff’s attorney, -when the summons is served; in the case of a defendant’s attorney, when the answer is served, if it contains a counterclaim.

The only change in the law effected by the section is to give attorneys liens upon causes of action before they are perfected into judgments. Obviously, an attorney for a defendant who has no cause of action to assert, gets no benefit under the section,' and therein is the only difference between liens for plaintiff’s and defendant’s attorneys; it is a difference that only obtains before judgment.

The cases of Pierson v. Safford (30 Hun, 521) and Levis v. Burke (51 id. 71), referred to, to sustain the claim that attorneys for defendants who have not pleaded counterclaims have no liens for costs, are both cases arising upon settlements made before judgments obtained, without paying the attorneys for their services, and there being no counterclaims, there was nothing to which the liens could attach, and, therefore, the court held in each case that it did not come under the provisions of section 66, and the attorney could get no relief at its hands.

Here a judgment has been obtained by the defendant for costs ; the lien of his attorney attaches upon its rendition ; unlike the cases of Pierson v. Safford and Levis v. Burke, there is here something in existence upon which, or to obtain which, the attorney has exercised his skill and spent his labor, and upon which the court can act to protect him.

It has long been settled that an attorney has a lien for his costs and compensation upon the judgment recovered by him.” (Marshall v. Meech et al., 51 N. Y. 140.)

It makes no difference whether the attorney is attorney for a plaintiff or for a defendant. These views lead to a reversal of the order appealed from.

Putnam, J., concurred.

Order reversed, with costs and disbursements.


author: Brown, P. J.:

text:
    Margaret J. Travis, Appellant, v. Edward R. Phelps, Respondent.

      Oloud upon a title— essentials of the action.

    An action to remove a cloud upon the title to land can only he maintained in a case -where the pretended title is valid upon its face, and where the party in possession will be compelled to resort to extrinsic evidence to show the invalidity of such pretended title and to defend his own.
    Where a judgment, at the time of its recovery, appears to have been a lien upon certain land, and the judgment creditor subsequently sells the land upon execution and receives a sheriff’s certificate of sale, but the owner of the fee of the land claims that at the time of the recovery of the judgment the title was not in the judgment debtor of record, but was in another person, by virtue of a deed, unrecorded and lost, the pretended title by the sale on execution is so far - regular upon its face as to justify the interference of a court of equity.
    Appeal by tbe plaintiff, Margaret J. Travis, from a j adgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 8th day of December, 1894, upon the dismissal of the complaint directed by the court after a trial at the Westchester Special Term.

      Joseph O. Oreme, for the appellant.

      Bengamm F. Gerdmg, for the respondent.
   Brown, P. J.:

When this action came on for tidal at the Special Term the complaint was dismissed upon the ground that the facts stated therein did not constitute a cause of action. We are of tlie opinion that this ruling was erroneous and. that the judgment must be reversed.

The action is one to remove a cloud upon the title to land in Westchester county of which plaintiff alleges she is in possession and seized in fee simple.

The complaint alleges the following facts: Bernard Travis acquired title to the land on August 24, 1864, by a deed which was duly recorded on September 6, 1864. By a deed dated October 26, 1877, and recorded October 29, 1877, he conveyed the land to Leonard Travis, who, on March 3, 1885, reconveyed it to Bernard. That the deed from Leonard to Bernard was lost, and that on May 13, 1891, Leonard and his wife executed another deed to Bernard for the purpose of taking the place of the lost deed, aud on November 14, 1892, Bernard Travis conveyed the land to the plaintiff. On March 3, 1885, the defendant recovered a judgment against Leonard Travis in the Supreme Court for the, county of New York for $225, a transcript whereof was filed and judgment docketed thereon in Westchester county on August 29, 1888. Execution was issued thereon to the sheriff on March 22, 1893, and the property sold to the defendant on June 24, 1893, to whom the sheriff delivered the usual certificate of sale, which had been filed in.the clerk’s office of Westchester county.

The defendant answered, admitting all the facts alleged as to the recovery of the judgment against Leonard Travis and the issuing of execution thereon and the sale of the land by the sheriff, and denied all other allegations of the complaint.

The rule applicable to this class of actions is well settled. They can be maintained only where the pretended title, which it is alleged constitutes a cloud, or the proceeding which it is apprehended will create one, is apparently valid on its face, and the party in possession will be compelled to resort to extrinsic evidence to show the invalidity of the pretended title and to defend his own. (Lehman v. Roberts, 86 N. Y. 232; Bockes v. Lansing, 74 id. 437; Smith v. Reid, 134 id. 577, 578.)

In this case, assuming, as we must, on this appeal, that the facts alleged in the complaint are true, the proceedings under which the defendant acquired the sheriff’s certificate were apparently valid, and if the sale had been perfected and the defendant had received a deed for the land, lie would, in an action to recover its possession, have established a prima facie case by the production of the record of the proceedings resulting in the sale. On the other hand, the plaintiff’s title was apparently subject to the judgment, and extrinsic ■evidence was necessary to show that that apparent title was not the real title.

Upon the record Leonard Travis, the judgment debtor, was the apparent owner of the land from October 29,1877, to May 13,1891. The judgment, therefore, apparently attached as a hen in August, 1S8S, when it was docketed in Westchester county.

To prove that what was thus apparent was not the real fact, the plaintiff alleged that Leonard had conve}red the land to Bernard Travis in 1885, and that the deed had been lost, and that the deed of 1891 was but a substitute for the lost conveyance.

These facts created a case within the jurisdiction of a court of ■equity.

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

Cullen, J., concurred; Dvkman, J., not sitting.

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


author: Brown, P. J. :

text:
    Nettie Fieseler, Appellant, v. George H. Stege, Respondent.

      Action to set aside instruments procured by fraud- — complaint — when a good ccrnse of action- is set forth therein.

    The complaint in an action alleged the recovery of a judgment for §1,464.45 against the plaintiff’s husband by the defendant and another, and an agreement that the plaintiff should give the defendant a chattel mortgage upon her' property for §350, in full settlement of the said judgment; that the plaintiff was unfamiliar with legal papers, and was unable to read English, and that in pur. suance of said agreement she signed such papers as were presented to her, on the assurance and in the belief that she was signing such chattel mortgage ; that the defendant fraudulently took advantage of the plaintiff’s ignorance, and procured her to sign a statement for the entry of judgment by confession for the amount of the judgment against her husband, with interest., and also procured her to sign a chattel mortgage in his favor to secure the payment of such amount.
    The entry of such judgment by confession and the filing of such chattel mortgage were alleged, and it was further alleged that the confession of judgment and mortgage both, stated that they were given in satisfaction of the judgment against the plaintiff’s husband. That such judgment had been satisfied, and that the plaintiff’s husband was insolvent.
    The relief demanded was that the mortgage and judgment be declared void and canceled of record, and that the original chattel mortgage be delivered up to the plaintiff and be canceled.
    The defendant demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action.

      Held, that while the facts upon which the charge of fraud rested might with propriety have been set out more specifically, yet a cause of action was stated and the demurrer should have been overruled;
    That the word “assurance,” as used in the complaint, meant representation, declaration or persuasion;
    That the false representation or declaration alleged, whether made by the defendant or by some one acting for him, was a fraud which would vitiate the transaction and j ustify the relief sought.
    Appeal by tbe plaintiff, Nellie Fieseler, from an interlocutory judgment of the Supreme Court in favor of defendant, entered in. the office of the clerk of the county of Kings on the 22d day of December, 1894, rij)on the decision of the court rendered at the Kings County Special Term sustaining the defendant’s demurrer to the complaint and dismissing the complaint.

      Horace Secor, Jr., for the appellant.

      Uriah W. Tonvphins, for the respondent.
   Brown, P. J. :

The complaint in this action alleged the recovery of a judgment against the plaintiff’s husband by the defendant and one Behrman on or about November 17, 1891, for $1,464.45, and a levy by the sheriff of Kings county under said judgment upon property belonging to the plaintiff, and an agreement that the plaintiff should give to the defendant á chattel mortgage upon her property for $250 in full settlement of the said judgment.

The third and fourth allegations of the complaint were as follows:

“ III. That plaintiff was unfamiliar with legal papers, and was unable to read English; and that in pursuance of said agreement she sigiied such papers as were presented to her on the assurance and in the belief that she was signing said chattel mortgage.
“ IY. On information and belief, that the defendant, fraudulently taking advantage of plaintiff’s ignorance, procured her to sign a statement for the entry of a judgment by confession in his favor, dated August 3, 1892, for the sum of $1,464.45 (being the amount of the aforesaid judgment against her husband), with interest from November 1Y, 1891; and also procured her to sign a chattel mortgage in his favor, dated August 3, 1892, to secure the payment of $1,464.45 three years from date, with interest from November 1Y, 1891.”

It further alleged the entry of judgment against the plaintiff upon such confession in the Supreme Court on August 3, 1892, and the filing of a copy of said chattel mortgage in the office of the register of Kings county on the same day.

That said confession and mortgage both stated that they were ■given in satisfaction of the judgment against plaintiff’s husband, and that said judgment had been satisfied, and that her said husband was insolvent.

The relief demanded was that said mortgage and judgment be declared void and canceled of record, and that the original chattel mortgage be delivered up and canceled.

To this complaint the defendant demurred on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was sustained by the Special Term, and the plaintiff has appealed to this court.

While the facts upon which the charge of fraud rests might, with propriety, be set out more specifically by the plaintiff, we are of the opinion that a cause of action is stated, and that the demurrer should have been overruled.

In the fourth paragraph of the complaint the plaintiff alleges that the defendant, fraudulently taking advantage of her ignorance, procured her to sign the confession of judgment and the chattel mortgage.

The ignorance of which advantage was taken was her inability to read English, which fact is alleged in the third paragraph, and the act which constituted the fraud is there alleged to be “ the assurance ” that she was signing said chattel mortgage,” which meant a chattel mortgage for $250.

The word “ assurance ” is there used to mean “ representation,” “ declaration ” or “ persuasion,” and such declaration was made to her by the person presenting the paper. Such is the fair meaning of the allegation that she signed such papers as were presented to her on the assurance * * * that she was signing said chattel mortgage.”

AVhile it is not alleged that the defendant was the person who made the representation, it is plain that it was either he or some one acting for him, and in either event the false representation or-declaration was a fraud which would vitiate the transaction and justify the relief which the plaintiff sought.

The fraudulent acts which induced the execution of the two instruments which the plaintiff sought to have set aside were, therefore sufficiently alleged, and the demurrer was not well taken.

The judgment should be reversed and the demurrer overruled, with costs of appeal and costs of trial, and the defendant have leave to answer in twenty days upon payment of costs.

Cullen and Dykman, JJ., concurred.

Judgment reversed, with costs, and demurrer overruled, with leave to defendant to answer in twenty days on payment of costs.


text:
    Phebe R. Kissam, Respondent, v. The Brooklyn Elevated Railroad Company and Another, Appellants.

      Recovery of damages to root estate caused by an elevated railroad —judgment, when defective in form.

    The judgment in favor of the plaintiff, in an action brought to recover the past and fee damages to real estate, caused by the operation of an elevated railroad, must provide that the plaintiff, upon receiving the amount adj udged as damages, shall execute and deliver to the defendants a release of the easements claimed to be injured, and a release of any mortgage or other lion that may exist thereon. If the judgment fails to so provide it is defective in form, and will be modified upon appeal.
    Appeal by the defendants, The Brooklyn Elevated Railroad Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 13th day of November, 1894, upon the decision of the court, rendered after a trial at the Kings County Special Term, enjoining and restraining the defendants from maintaining an elevated railway in front of the plaintiff’s premises, and also from the decision of tlie court entered in said clerk’s office on the 13th day of November, 1894.
    This action was brought to enjoin the operation of an elevated railway, to obtain the removal of the structure thereof, to recover past damages caused thereby, and, in case it should be determined to allow a continuance of such road for the purpose of public convenience, to recover an amount to be fixed as the value of the easements taken by the said company.
    The judgment rendered in favor of the plaintiff, perpetually enjoining the maintenance of such elevated railroad in front of the plaintiff’s premises until the payment of the judgment, awarded the plaintiff past damages, and awarded him a further sum besides costs. The judgment contained no provision that the plaintiff, upon receiving the amount thereof, should deliver a release of the easements claimed to be injured by the operation of the defendants’ road.

      William II. ■Page, Jr., for the appellants.

      Stephen M. Hoye and Francis Russell Whitney, for the respondent.
   Brown, P. J.:

The findings of the trial court upon the question of value are not without support in the testimony, and we cannot say that the proof preponderated in favor of a contrary result.

While the plaintiff’s case is not a strong one, we are of the opinion that the conclusions of fact must stand. None of the exceptions taken require a reversal of the judgment.

The judgment is, however, defective in form- and must be modified so as to provide that tlie plaintiff upon receiving the amounts adjudged as damages shall execute and deliver to the defendants a release of the easements claimed to he injured and a release of any mortgage or other lien that may exist thereon.

So modified, the judgment must be affirmed, with costs.

Cullen and Dykman, JJ., concurred.

Judgment modified so as to provide that plaintiff, upon receiving the amounts adjudged as damages, shall execute and deliver to the defendants a release of the easements claimed to be injured, and a release of any mortgage or other lien that may exist thereon.


text:
    John M. Anderson, as Executor, etc., of Andrew Anderson, Deceased, Respondent, v. Freiderich Petereit, Appellant, Impleaded with Another.

      Building contracts — substantial performance required — what defects and omissions preclude a recovery.

    The relaxation of the rule, that the plaintiff in an action must show performance of a contract when that is a condition of payment, was not intended to permit courts and juries, in cases arising under building contracts, to substitute a money indemnity as an equitable compensation for the unfulfilled covenants of the contract, but arose because of the difficulty of complying with entire exactness with all the particulars embodied in that class of agreements.
    Where the defects and omissions pervade the whole work, the contractor cannot recover upon the theory of substantial performance.

      Semble, that under a contract to build a house for §8,300, the finding of a referee that §300 would repair the defects, shows too great a variation and indicates that there was no performance.
    A willful variation from that portion of plans and specifications for a house which directed that footing courses should be not less than six inches thick, and should project not less than six inches on ail sides of the walls and piers, thereby causing a defect which cannot be remedied, precludes the idea of performance and prevents any recovery.
    Appeal by the defendant, Freiderioh Petereit, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the lltli day of August, 1894, upon the report of a referee.

      Edward P. Schell and Aim. I. Elkus, for the appellant.

      Jleriert D. Lent, for the respondent.
   Brown, P. J.:

This action was brought to foreclose a mechanic’s lien filed by Andrew Anderson, the plaintiff’s testator, against the property of the defendant. Anderson entered into a written contract with the defendant to erect for him a dwelling house according to certain plans and specifications for the sum of $3,200. The final payment was to be $1,300, and was to be made upon the completion and acceptance of the building. The lien was filed for the amount of khe final payment. The action was defended on the ground that the work had not been performed in accordance with the drawings and specifications.

The referee found that the contract was substantially performed, but that, by reason of defective work and defective materials used in the Construction of the house, the defendant was entitled to deduct $300 from the balance of the contract price, and that the defects in the building were not substantial ones and did not pervade the whole work, and that “ they are not so essential that the object of the parties failed of accomplishment by reason thereof.”

The referee has not found the particular defects in the building or materials for which he made the allowance of $300, and it is impossible for this court, from an examination of the evidence, to ascertain wliat matters were intended to be covered by that allowance.

In response to requests to find made by the appellant the referee negatived nearly all the claims of variation from the contract made by the appellant. He found that some of the doors and windows furnished were not of good material and did not comply with the contract, and that the footing courses under the foundation walls and chimneys did not extend six inches beyond the walls and chimneys as required by the contract.

Ordinarily the question of substantial performance has been held to be one of fact; but it was said in Crouch v. Gutmann, (134 N. Y. 45, 54) that the cost of the completion of work by remedying defects, or supplying omissions in it to meet the requirements of a contract, may be so great as to -preclude the conclusion of substantial performance. In that case the fair value of the labor and materials necessary to remedy defective work was but $205, and yet three judges dissented from an affirmance of a judgment in favor of the plaintiff on the ground that -the defective performance of the contract was sufficient to defeat a recovery.

In Flaherty v. Miner (123 N. Y. 382) the price of the work fixed in the contract was $3,500.' The jury allowed the defendant $600 for the expense of doing work which the plaintiff was bound under the contract to do, and it was said by the court, that if it had appeared upon the trial without dispute that such a substantial portion of the work remained .undone * * * it may well be be that the plaintiff could not have recovered upon the theory of a substantial performance.” There was uo exception, however, that presented that question for decision in the Court of Appeals, and, hence, the judgment was affirmed.

In Crouch v. Gutmann the court said: “ The rule of substantial performance should not be extended beyond the purpose in view when the relaxation of the strict performance was adopted which was founded upon equitable considerations in furtherance of justice, and made applicable to cases of honest intention of contractors to fairly perform their contracts, and who shall in the main have done so with only slight defects or omissions inadvertently and unintentionally caused and appearing in the work.”

If a contractor should fail to perforin some distinct or specific piece of work, which, by his contract he had stipulated to do, the value of which was one-tenth of the contract price, there would, I think, be no question that there was not a substantial performance of the agreement. The rule still prevails that the plaintiff must show performance when that is a condition of payment. The relaxation of its strict application in cases arising under building contracts was not intended to permit courts and juries to substitute a money indemnity as an equitable compensation for unfulfilled covenants of the contract, but arose because of the difficulty of complying with entire exactness with all the particulars embodied in that class of agreements. Hence, it has been repeatedly said in the decisions that it is only in cases where there has been no willful omission by the contractor, but he has honestly and faithfully performed the contract in all its substantial particulars, that lie will not be held to have forfeited his remuneration by mere technical or unimportant omissions or defects. The rule stated by Chief Judge Church in Glacius v. Black (50 N. Y. 145), and which has been frequently repeated in later decisions, was, that if the defects or omissions are so numerous and prevailing as to show that the wdiole job was done in a slovenly and improper manner, not conforming substantially with the plans and specifications, there was no rule of law which entitled the claimant to compensation.

'When the defective work bears such a proportion to the whole contract as it does in this case I think it a subject of grave doubt whether a recovery could be sustained by the contractor on the theory of substantial performance. In this case it is not, however, necessary to rest our decision upon the amount of the value of the defective work as the defects and omissions were so numerous that they must be held to have pervaded the whole job. The allowance made- by the referee for defective work was evidently not based ' upon the testimony offered by the plaintiff, as his witnesses testified that twenty-five dollars would remedy all defects. The testimony introduced by the defendant showed defects which ran through the whole work. Foundations were of less size than specified, and constructed of inferior material. Timbers in the frame of the building and in the partitions were smaller than called for by the specifications. The chimneys were out of plumb, floors and ceilings out of level, walls uneven and corners not square. Doors, windows and blinds were defective and of poor material and generally defective work was the rule, and not compliance with the contract. And in one important particular the plans and specifications were departed from to such an extent as to preclude the conclusion of performance. The specifications provided that the contractor should put footings of heavy rough stone under all foundation walls, piers, posts and chimneys, to be not less than six inches thick and to project not-less than six inches on all sides of walls and piers.

The referee found that there were footing courses under the walls and chimneys, but that they did not extend six inches beyond the walls, and it appears from the testimony of the mason that the stones used were not as thick as called for by the specifications. There was no ambiguity about the contract in this respect, and the defect is not one that can now be remedied. The defendant has a right to have his house erected according to his own idea of strength and utility, and the contractor was bound to construct the wall of the size and character specified. “ If the owner, having regard to strength and durability, has contracted for walls of specified materials to be laid in a particular manner * * * the builder has no right to substitute his own judgment or that of others. Having de]3arted from the agreement, if performance has not been waived by the other party, the law will not allow him to allege that he has made as good a building as the one he engaged to erect.” (Smith v. Brady, 17 N. Y. 186, 187.)

In Glacius v. Black (67 N. Y. 563) a judgment in favor of the plaintiff was reversed by the Court of Appeals for a departure from tbe specifications no more important than in the respect here found by the referee.

There was no difficulty in complying with this provision of the contract, and the contractor’s act in departing from it was willful, and it cannot be legally justified without absolutely setting aside the rule which requires performance of the contract as a condition of a recovery of the stipulated compensation. The case is not one of substantial performance, but one where the builder substitutes his own judgment of what is necessary in place of the stipulation of the contract. The case in this respect was one of a failure to perform, and the omission is fatal to the plaintiff’s right to recover.

It is claimed by the respondent that the defendant waived the defects in the performance of the contract. Waiver is largely a question of intention, and we do not think that the evidence before us would permit the conclusion that the defendant surrendered his right to have the plans and specifications complied with.

The referee, however, made no findings upon this question, and it is not before us for review.

The judgment must be reversed, the order of reference vacated and a new trial granted, costs to abide the event.

Cullen and Dykman, JJ., concurred.

Judgment reversed, order of reference vacated and new trial granted, costs to abide event.


text:
    Deborah L. Mangam, Respondent, v. The President and Trustees of the Village of Sing Sing, Appellant.

      Bjectment —evidence — acts of ownership by milage trustees.

    "Where, in an action brought to recover the possession of lands, the answer alleges that for upwards of forty years past the premises in question had been in the possession of. the defendant, a village, and in use as a public square and street, the defendant has a right to prove acts of ownership upon the part of the village trustees.
    The construction of a reservoir upon the land, its inclosure by posts and chains, the maintenance of these as a fence, the use of the land for public meetings, and generally all acts done by the village trustees in reference to the land as public property, are competent as showing its character and in rebuttal of the plaintiff’s claim.. &

      Appeal by the defendant, The President and Trustees of the Village of Sing Sing, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 31st day of March, 1894, upon the decision of the court rendered after a trial by the court without a jury at the Westchester Circuit.

      John Oibney and Smith Lent, for the appellant.

      Nelson H. Baker and Frederick S. Parker, for the respondent.
   Brown, P. J.:

This was an ejectment action to recover possession of a triangular piece of land in the village of Sing Sing used as a part of a public square.

The land lies at the intersection of Highland avenue and Main street. ' . .

The plaintiff founds her title upon a deed from Francis Larkin and others to Daniel D. Mangam, her husband, dated March 1,1867. The complaint alleged that plaintiff was in possession of the land in dispute on September 29,1886, and the court found that fact. The proof does not, however, show an actual possession and occupation of the land by the plaintiff or her husband at that or any other date. At the time of the deed to Daniel Mangam the lot was inclosed by posts and a chain, but this fence had been erected by the village trustees, and beyond replacing a few of the posts and repairing the chain there were no acts of ownership over the land shown to have been exercised by the plaintiff or' her husband. There was not, therefore, such a possession as the law requires upon which to found an action of ejectment, and if the plaintiff is entitled to recover she must do so upon her legal title.

The deed from Larkin to Mangam bounded the land conveyed as follows: “Easterly by the Highland Turnpike road; northerly and northwesterly by a road leading from the Highland Turnpike road to the Farmers’ Landing ; southerly by the churchyard or land of the First Baptist Church of Mount Pleasant.”

It is the plaintiff’s claim that the above description bounds a triangular piece of land and that the lot in dispute is at the apex of the triangle.

The Highland turnpike road is now known as Highland avenue and the other road is Main street. It is the defendant’s contention that the lot in dispute is not included in the description of the Larkin deed, but that originally it was a part of Main street and at a later date a part of a public square, and to substantiate this claim testimony was given tending to show that Main street, which now runs substantially in a straight course until its westerly side intersects the west - side of Highland avenue, originally curved abruptly to the east at a point now represented by the corner of the house on plaintiff’s lot, which was formerly called the Eagle Hotel, and ran immediately in front of that building until it intersected Highland turnpike, and that the building that stood on the west side of Main street, referred to in the testimony as the Ward house, was subsequently moved back and the west side of Main street straightened to run upon substantially its present line. That after that change was made all the space between the Eagle Hotel and the west side of Main street was used as an open square and controlled, worked and improved by the village. All this was claimed to have occurred long prior to the deed from Larkin to Daniel Mangam.

The defendant offered oral and documentary evidence of acts of ownership by the trustees of the village prior to 1867, over and in relation to this square, including the land in question, all of which was excluded upon the plaintiffs objection.

We are of the opinion that this evidence was admissible and its exclusion error, for which there must be a new trial.

The answer alleged that for upwards of forty years past the land had been in possession of the defendant and in use as a public square and street by the people of the village, and just as it would have been competent to show a use by the public of the land in dispute as a street or highway, so it was competent to show the acts of the public authorities in relation to its control and use as a public square. The construction of a reservoir thereon, its inclosure by posts and chain, the maintenance of these as a fence, the use of the land for public meetings, and generally all acts done by the trustees in reference to it as public property, were admissible as showing its character and contradicting the plaintiff’s claim and assertion of private use and ownership.

There was very much testimony in the case tending to favor the conclusión that Main street originally ran directly in front of the building on the plaintiff’s lot, and if it had appeared that, after the change in the line of that street, the intervening space had always been used as a public street or square and controlled by the village trustees a different result might have been reached.

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

Cullen, J., concurred; Dykman, J., not sitting.

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


author: Brown, P. J.

text:
    Edgar A. Briggs and Another, as Executors, etc., of Almanson L. Irish, Deceased, Respondents, v. Elizabeth C. Thompson and Others, Defendants; Ury Hicks and Another, Appellants.

      Assignments of mortgages and releases — conmjances under the Recording Act — possession of real property — notice — assignee of a mortgage.

    An assignment of a mortgage and a release of a portion of the mortgaged premises from the lien of the mortgage are both conveyances within the provisions of the Recording Act, under the provisions of which conveyances not recorded are void against subsequent purchasers in good faith and for a valuable consideration, but the notice of a prior unrecorded conveyance or of any title to the premises or knowledge of facts which would put a prudent man upon inquiry, impeaches the good faith of a subsequent purchaser.
    The open and visible possession of property, by others than those who have title on the record, is equivalent to notice of the rights of such persons. ikmhle, that using land occasionally for pasturage or the cutting of timber therefrom is not such an occupancy thereof as would charge a purchaser or incumbrancer with notice.
    Where a person in ilie possession of real estate is á stranger to an apparent or recorded title thereto, his possession is the assertion of an adverse right, but when his title is derived from a mortgagor there is nothing in the apparent possession of the land which is hostile to the mortgage. The occupant is supposed to hold, subject to the mortgage, and there is nothing to put the assignee of the mortgage on inquiry.
    Notice of an unrecorded title will be imputed only when it is a reasonable and just inference from visible facts. '
    Appeal by the defendants, Ury Ilicks and another, from a judgment of the County Court of Dutchess county, entered in the office of the clerk of the county of Dutchess on the 10th day of Decernber, 1894, upon the decision of the court directing the foreclpsure and sale of certain premises, with notice of an intention to bring up for review upon such appeal all questions relating to certain land described in the defendant Ury Hicks’ answer.

      William 8. Eno and M. A. Fowler, for the appellants.

      Haoltett c& Williams, for the respondents.
   Brown, P. J.

The question presented on this appeal is whether the plaintiffs, who are assignees of a mortgage, can enforce it against a purchaser of a part of the mortgaged property, who is in possession, and who holds his title under a prior recorded deed from the mortgagor, and a prior unrecorded release from the mortgagee. The facts of the case are undisputed. On May 4, 1863, Jacob M. Ousterhout executed the mortgage in question to David and Mary Pish. On May 2, 1867, the mortgagees released to Ousterhout twenty-seven acres of the mortgaged land, and on the same day Ousterhout conveyed said twenty-seven acres to Benjamin Hicks. The deed from Ousterhout to Hicks was recorded on June 27, 1868, but the release had not been recorded at the time of the commencement of this action. Benjamin Hicks conveyed the land to Ury Hicks in 1875, and the deed was recorded. On May 15, 1876, the mortgage and accompanying bond were duly assigned to Simmons White, and by several mesne assignments were transferred to the plaintiffs’ testator, who became the owner thereof on May 1, 1882. All of the several assignments of the bond and mortgage -were duly recorded.

Benjamin Hicks and Ousterhout owned adjoining farms in the town of Milan, Dutchess county. The property which is the subject of this litigation consists of twenty-seven acres of land, all inclosed, of which three and one-half acres are woodland. It was cri the northwest corner of the farm, some distance from the highway, without any buildings on it. While Ousterhout owned it he cultivated it for the usual farm products, and Hicks used it in the same manner and for the same purpose. The year it was sold to Hicks the land was surveyed, and a division fence built. Hicks took immediate possession and cultivated the land, and has continued to cultivate it ever since. The plaintiffs’ testator resided in the town of Hyde Park, about twenty-two miles from the mortgaged property, and1 had no actual knowledge of the sale of the property to Hicks or that he was in the occupation thereof.

The assignment of the mortgage and release are both conveyances within the provisions of the Recording Act. (Brewster v. Carnes, 103 N. Y. 562 ; Baker v. Thomas, 61 Hun, 17; St. John v. Spalding, 1 T. & C. 483.)

Independent of that statute the plaintiffs acquired no right to sell the twenty-seven acres conveyed to Hicks. The rights of the parties, therefore, depend solely upon that statute. By its terms, conveyances not recorded are void against subsequent purchasers in good faith and for a valuable consideration. That plaintiffs are purchasers for a valuable consideration is undisputed. But notice of a prior unrecorded conveyance, or of any title to the premises or knowledge of facts which would put a prudent man upon inquiry, impeaches the good faith of a subsequent purchaser. Hence the pertinent inquiry in this case is, did the plaintiffs’ testator have notice of Hicks’ title or knowledge of such facts concerning his possession that should have put him upon inquiry in reference thereto ? That open and visible possession of property by others than those who have title on the record is equivalent to notice of the rights of such persons is the rule established by an unbroken line of decisions, and, if the decision of this case depended upon the question whether the character of Hicks’ possession of the land was sufficient to have put the assignee of the mortgage upon inquiry as to his title, I think it would be difficult to sustain the judgment.

Hicks went into immediate possession of the land conveyed to him, inclosed it, and cultivated and cropped it in the manner usual with farm property. His acts in that respect were sufficient to constitute an adverse possession, as that term is defined in section 370 of the Code of Civil Procedure, and I can see no reason why such a possession was not constructive notice of Hicks’ title. He certainly could have made no greater use of the land than he did, and his possession could not have been more open and notorious than it was, unless he had erected buildings on the land and actually occupied them.

Baker v. Thomas (61 Hun, 17) is not a controlling authority on this question. In many of its facts it was quite like this case, but there the land was used as a pasture for cattle. It has been many times decided that using land occasionally for pasturage or cutting of timber was not such an occupancy as would charge a purchaser or incumbrancer with notice, and the report of that case does not state the extent of the use to which the land was put. In the case before us the land was inclosed, cultivated and improved. No more open and visible use could be made of farm land, and to hold that such an occupation and use was not constructive notice of the rights of the occupant would be -to deny the application of that rule to that class of property. But the question still remains, was Hicks’ possession notice of a claim adverse to the mortgage ? In my judgment it was not. His title was derived primarily from the mortgagor, and under that title he went into possession. The release was not made to him, and, if it had been, he could not have taken possession under it. His occupation was not inconsistent with the existence of the lien of the mortgage, and there was nothing in the mere fact of his possession to lead a prudent man to believe that he claimed a title adverse to the mortgagee.

When a person is a stranger to an apparent or recorded title the case is different. In such a case his possession is an assertion of an adverse right. But when, as in this case, title is derived from a mortgagor, there is nothing in the possession of the land apparent to an observer *which is hostile to a prior mortgage. The occupant is supposed to hold subject to the mortgage, and there is nothing to put an assignee of the mortgage on inquiry. Notice of an unrecorded title will be imputed only -when it is a reasonable and just inference from visible facts. This proposition was substantially decided in Cook v. Travis (20 N. Y. 400), and in Fassett v. Smith (23 id. 252).

It was also decided by Justice Pratt at Special Term in Mutual Life Insurance Company v. Wilcox (55 How. Pr. 43), and that case has been cited at General Term and in the Court of Appeals with approval.

The judgment must be affirmed, with costs.

Cullen and Dykman, JJ., concurred.

Judgment affirmed, with costs.


text:
    Walter L. Kent, Plaintiff, v. Susan W. Hopkins and Others, Defendants.

      Sections 23 and 24 of the Statue of Descent (1 B. S. p. 754) — inapplicable in cases , of pwrtial intestacy.

    Sections 28 and 24 of the Statute of Descent (1 H. S. p. 754) are not applicable -where a testator has disposed by -will of a portion of his estate. The purpose of the statute is to make equality of division in the distribution of an estate when no disposition is made by a will, but when a person who has made advances to his children makes a will, he is presumed to make it with reference to such advances, and the two acts represesent his intention with reference to the disposition of his estate.

      Thompson v. Garmichael (3 Sandf. Ch. 120), followed.
    Motion by the plaintiff, Walter L. Kent, for a new trial on a ease containing exceptions, ordered to be heard at the General Term in the first instance, upon the decision of the court, rendered after a trial at the Kings County Special Term on the 9th day of February, 1895, directing the actual partition of certain real estate.

      J. T. Mcvrecm, for the plaintiff.

      Elihu Root, Bronson Winthrop and Ect/wm B. Root, for the defendants.
   Brown, P. J.:

This action was brought for the partition of real estate among the heirs and devisees of Henry A. Kent, deceased. The plaintiff and the defendants, Susan W. Hopkins, Frances K. Sanger and Sheldon L. Kent, were children of said deceased, and the complaint alleged that said deceased made advancements to each of said defendants of the value of $15,000, and made .none to the plaintiff. The bill of exception states that on the trial the plaintiff offered proof that such advancements were made to said defendants, that objection was made to the admission of such proof, on the ground that said deceased left a will by which he disposed of one undivided quarter of his estate, and that the advancements were, therefore, not to be taken into account in the division among his children of so much of his real estate as was undisposed of. The fact that deceased left a will, having been, admitted by the plaintiff, the objection was sustained and the proof excluded, to which ruling the plaintiff took an exception.

The question presented is whether sections 23 and 24 of the Statute of Descent (1 K. S. p. 754) are applicable to a case where a testator has disposed by will of only a portion of his estate.

The sections are as follows:

Sec. 23. If any child of an intestate shall have been advanced by him, by settlement or portion of real or personal estate, or of both of them, the value thereof shall be reckoned, for the purposes of this section only, as part of the real and ¡Dersonal estate of such intestate, descendible to his heirs, and to be distributed to his next of kin, according to law; and if such advancement be equal or superior to the amount of the share which such child would be entitled to receive of the real and personal estate of the deceased, as above reckoned, then such child and his descendants shall be excluded from any share in the real and personal estate of the intestate.
■“ Sec. 24. But if such advancement be not equal to such share such child and his descendants shall be entitled to receive so much only of the personal estate, and to inherit so much only of the real estate of the intestate as shall be sufficient to make all the shares of the children in such real and personal estate and advancement to be equal as near as can be estimated.”

This question was decided in the negative by Judge Sandeord in 1845, in the case of Thompson v. Carmichael (3 Sandf. Ch. *120), and the reasoning of that case commends itself to our judgment. The appellant contends that the word “ intestate” is not used in the statute to indicate a person who dies without a will, but one who dies without devising all his real estate, and that the term includes, therefore, a case of partial intestacy. This argument is considered in the case cited.

In all the sections preceding the twenty-third the term is used in reference to real estate and to the inheritance therein which is provided for by the particular section in which the term is used. The twenty-third section has reference to a new subject, and its provisions relate to personal estate as well as real, and the term “ an intestate ” describes one of a class of persons, who, in their lifetime have made advancements witli which the section deals, and the word is used in its legal and popular sense to indicate one who died without a will. The purpose of the statute was to make equality of division in the distribution of an estate when no disposition was made by will. But when a person who has made advancements to his children makes a will, lie is presumed to make his will with reference to his advancements, and tlie two acts represent his intention with reference to the disposition of his estate. The injustice which the statute would work if applied to cases of partial intestacy is pointed out by Judge Sandford in the case cited, and is aptly illustrated in the brief of Mr. Charles O’Conor.. Nothing need be added to the opinion in that case. The construction there put upon the statute is in harmony with the decisions in other jurisdictions, many of which are cited in the opinion. Others to the same effect are cited upon the briefs of defendants’ counsel.

No other reported case in this State has ever given a contrary interpretation to this statute. The decision has stood unchanged for half a century and is cited with approval by all the text writers upon the subject. In our opinion it correctly interprets the statute.

The exceptions should be overruled and motion denied, and judgment ordered for the defendants upon the decision of the Special Term.

Dyicman, J., concurred ; Cullen, J., not sitting.

Exceptions overruled and motion denied, and judgment ordered for the defendants upon the decision of the Special Term.


text:
    Charles W. Strader, Respondent, v. The New York, Lake Erie and Western Railroad Company, Appellant.

      Agreement between several railroad companies as to the maintenance of the road used by each and the pay of the employees — negligence of a fellow-servant.

    The New York, Lake Erie and Western Railroad Company, lessee of the Goshen and Deckertown railroad, granted to the Pennsylvania, Poughkeepsie and Boston Railroad Company the right to use the railroad track of the Goshen road jointly with the Erie road under an agreement which provided that during its continuance the Boston road should pay the Erie a stipulated proportion of the rental of the Goshen road, and of the expense of maintaining the tracks, hridges and property used jointly, including the wages of the yardmaster, switchmen, train dispatchers, flagmen and other servants; that the railroads and premises included under the agreement should be maintained and operated under the control of the superintendent of the Erie company, who, in matters relating to the maintenance of property, should be under the exclusive direction of the Erie company.
    The agreement further provided that as the employees conducting the business were joint employees, and were paid by each party in proportion to the business done by it, it was agreed that each party should be responsible for the acts of such joint employees when engaged in that party’s business; and, finally, that the Brie company should incur no additional responsibility from the fact that such employees were hired or paid by it.
    An engineer employed by the Boston company having been injured, as alleged, by the negligence of a switchman employed on the Goshen road, brought an action for damages against the Erie company and recovered.

      Held, that the agreement gave to the Boston company only the right to use the tracks of the Goshen road, and devolved upon the Boston company no duty to maintain the tracks;
    That the switchman was, under the agreement, the employee of the Erie company only, and that, therefore, the defense that the injury was caused by the act of a fellow-servant was not tenable.
    Appeal by the defendant, The New York, Lake Erie and Western Railroad Company, from a judgment of the Supreme Court in favor of tlie plaintiff, entered in the office of the clerk of the county of Orange on the 7th day of July, 1894, upon the verdict of a jury rendered after a trial at the Orange Circuit, and also from an order granted on the 22d day of June, 1894, denying the defendant’s motion for a new trial made upon the minutes.

      Lewis E. Gwrr, for the appellant.

      O'Neill c& Lloyce, for the respondent.
   Brown, P. J. :

This action was to recover damages for personal injuries alleged to have been caused by the defendant’s negligence. The plaintiff was a locomotive engineer employed by the Pennsylvania, Poughkeepsie and Boston Railroad Company, and was injured while running a train over the defendant’s road near Orange Farm station. The accident was caused by an open switch, whicli permitted the plaintiff’s train to leave the main track and the engine to be thrown down an embankment.

The testimony introduced by the plaintiff permitted the conclusion by the jury that a short time prior to the accident the naan who had charge of the switch had been engaged in making some repairs upon it and that he had left it open, and the ground mainly relied upon by the appellant for a reversal of the judgment, and the only one which wer deem it necessary to consider, is, that the switchman was a co-employee with the plaintiff, and for that reason the court erred in denying a motion to dismiss the complaint.

The accident occurred upon the Goshen and Deckertown railroad, which extended from Goshen to Pine Island in the county of Orange. This road was leased to defendant and was used by the Poughkeepsie and Poston company under and pursuant to an agreement with the defendant, and the validity of the ruling of the trial court depends upon the construction to be given to this agreement. It bears date August 2, 1889, and granted to the Boston company “ the right to use * * * the railroad tracks of the Goshen and Deckertown Railroad” jointly with the defendant. It provided that during the continuance of the agreement the Boston company should pay to the defendant a stipulated proportion of the rental of the road, the expense of maintaining and renewing the tracks, bridges and property used jointly by the two companies, including the wages of yardmaster, switchmen, train dispatchers, flagmen and other servants. It further provided that “ the railroads and premises included hereunder shall be maintained and operated under the control of the superintendent of the Erie company ” who in matters pertaining to the maintenance of the property was to be under the exclusive direction of the Erie company. The employees engaged in conducting the business hereunder, being joint employees and being paid by each party in proportion to the business done by such party, it is agreed that each party hereto shall be responsible for the acts of such joint employees when engaged in that party’s business. And * * * the Erie company shall incur no additional responsibility from the fact that such employees are hired or paid by it.”

We are of the opinion that under this agreement the switchman or trackwalker who had the charge and care of the switch in question was not the servant of both companies. He was hired and paid by the defendant, and was under the exclusive direction of its superintendent. The Boston company had no voice in his selection, and could neither discharge him nor direct him in his work. The provision of the contract, that each company should be responsible for the acts of the employees only when engaged in such company’s business, had no relevancy to the accident to the plaintiff. The Boston company had no control over the maintenance of the road. That duty devolved, under the contract, solely upon the defendant. The sole right which the Boston company had was a right to use the tracks. The control of the road and the maintenance of the tracks and their charge and control remained in the defendant. The switch-man was its servant, and for damages resulting from his negligence the defendant was liable.

Note.— The other cases of this term will he found in the next volume, 87 Hun.— [Rep.

The judgment must be affirmed, with costs.

Dykman, J., concurred; Cullen, J., not sitting.

Judgment affirmed with costs.


text:
    John C. Barnard, Respondent, v. George C. Brown, Appellant.
   Order affirmed, with ten ! dollars costs and disbursements.


text:
    The People of the State of New York ex rel. John Lardner and Others, Appellants, v. Samuel A. Carson, Respondent.
   Judgment affirmed, with costs.


text:
    Charles F. Becker, Plaintiff, v. The New York Central and Hudson River Railroad Company, Defendant.
   Plaintiff’s motion for a new trial denied and judgment directed for the defendant on the verdict.


text:
    Mary E Riddell, Appellant, v. Frank Travis, Respondent, Impleaded, etc.
   Order affirmed on opinion in preceding case. (See Riddell v. Riddell, 85 Hun, 482.)


text:
    Thomas F. Reed, Respondent, v. Albion Stone Company, Appellant.
   Judgment and order affirmed.


text:
    John Duffy, Sr., Appellant, v. Joseph Hamilton, Respondent.
   Judgment affirmed, with costs.


text:
    Frank B. Perry and Another, Appellants, v. The Lehigh Valley Railway Company, Respondent.
   Judgment affirmed, with costs, with leave to plaintiffs to amend complaint within twenty days on payment of the costs of the demurrer and of this appeal.


text:
    Maude A. Hertzler, Appellant, v. The City of Buffalo, Respondent.
   Judgment and order affirmed. Dwight, P. J., nob voting.


text:
    Newton Milks, Respondent, v. John Milks, Appellant.
   Judgment and order affirmed. Dwight, P. J., not voting.


text:
    Traders’ National Bank, Respondent, v. The Weaver Lumber Company, Appellant.
   Order affirmed, with ten dollars costs and disb ursements.


text:
    William B. Weaver v. The Weaver Lumber Company. Traders' National Bank, Respondent; Henry W. Greig, Appellant.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Edwin A. Eaton, Plaintiff, v. The New York Central and Hudson River Railroad Company, Defendant.
   Plaintiff’s motion for a new trial granted, costs to abide the event.


text:
    Jacob Brinkerhoff and Another, Appellants, v. Amarilla B. Sartwell, as Executrix, and Others, Respondents.
   Judgment affirmed on opinion of Bradley, J., in preceding case. (See Brinkerhoff v. Sartwell, 85 Hun, 557.)


text:
    Ella A. Wooden, as Executrix, etc., Appellant, v. Amarilla B. Sartwell, as Executrix, etc., and Others, Respondents.
   Judgment affirmed, with costs on opinion of Bradley, J.


text:
    Lewis H. Allen, Respondent, v. John C. Matthas and Others, Appellants.
   Judgment affirmed.


text:
    Caroline L. Boehm, Respondent, v. The Commercial Life Insurance Company of New York, Appellant.
   Judgment and order affirmed.


text:
    William Oakes, Respondent, v. August Kimmel, Appellant.
   Judgment affirmed.


author: Bradley, J.:

text:
    In the Matter of the Judicial Settlement of the Account of Benjamin F. Grant, as Executor, etc.
   Decree of the Surrogate’s Court modified by deducting therefrom fifty dollars and eighty-eight cents, and as modified affirmed, without costs.—

Bradley, J.:

This appeal was heard and decision made in October, 1891, upon opinion of Lewis, J. (16 N. Y. Supp. 716; 40 N.Y. St. Repr. 944). It was then held that the widow of the decedent was entitled to the possession of the estate, as no trustee of it was appointed by the will. In that respect the determination of the Surrogate’s Court as to the construction of the will was sustained. The proceedings were remitted to the surrogate to take proof of certain items of $50 and $100 allowed to the executor, because it did not appear by the record that they should have been allowed. The matter thereupon- came again before the Surrogate’s Court, and proof for the allowance of those items was made. No question is now raised in that respect. But it is urged by the learned counsel for the appellants that a reconsideration should be had of the question of construction and effect of the provision of the will upon which it was held on the former review that the widow was entitled to the possession of the fund. And it is insisted that this is required by the decision of the Court of Appeals in Matter of McDougall (141 N. Y. 21) There seems to be a substantial difference in the provisions of the wills in the two cases, upon the subject to which the question here relates. There the testator gave the rest and residue to his wife “to be used and enjoyed'by her during her life or widowhood.” By the will in question the testator gave his widow the right to the rents and profits of the estate for life, and, if that should be insufficient for her support, the corpus of it might be used for that purpose. The right so given in such event to use the principal of the fund distinguished this from the McDougah case, and such distinction has recognition in the views there expressed by Judge Peckham that “in other cases where it has been held that the legatee was entitled unconditionally to the possession of the legacy without security, other facts existed, such as where the language of the will made it manifest that the testator intended to give to the legatee power to use in his discretion some portion of the corpus of the estate for his support.” Such is the purpose expressed in the will in question. And, therefore, the views of the court on the former review are readopted. The surrogate, however, in his findings states that by inadvertence a certain sum of fifty dollars and eighty-eight cents, allowed to the executor and included in the decree, should be deducted from it. With that modification the decree of the Surrogate’s Court should be affirmed, without costs. Dwight, P. J., and Lewis, J., concurred.


text:
    John M. Eddy, Appellant, v. Milo A. Briggs, Respondent.
   Judgment anti order affirmed.


text:
    John Lowden, Respondent, v. Martin Beattie, Appellant.
   Judgment and order affirmed.


text:
    George N. Pierce and Others, Appellants, v. Theodore J. E. Daggett, Respondent, Impleaded, etc.
   Order affirmed, with ten dollars costs and disbursements.


text:
    The United Glass Company, Appellant, v. Peter R. Sleight, as Receiver, etc., Respondent.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Same v. Same.
   Order vacating injunction, etc., affirmed, without costs.


text:
    Dennis B. Wiggins, Respondent, v. Frank N. Alderman, Appellant.
   Order affirmed, with ten dollars costs and disbursements.

Motions.


text:
    Daniel W. Jones, Respondent, v. John B. Manning and Others, Appellants.
   Motion for. leave to appeal to the Court of Appeals granted. Lewis, J., not sitting.


text:
    Ida Niggli, Appellant, v. Frank H. Foery and Another, Respondents.
   Motion for reargument denied.


text:
    Riley v. Hallett.
   Motion for reargument denied.


text:
    Mandeville J. Barber and Others, as Executors, etc., v. Mary K. Lancy.
   Motion to dismiss appeal denied.


text:
    Same v. Same.
   Motion to dismiss appeal denied.


text:
    The People of the State of New York ex rel. The Lehigh Valley Railway Company, Appellant, v. The City of Buffalo, Respondent.
   Order affirmed on opinion of Green, J., with ten dollars costs and disbursements.


author: Per Curiam:

text:
    The People of the State of New York ex rel. Manhattan Railway Company v. Barker.
   Order reversed, with costs and disbursements.—

Per Curiam:

Upon an examination of the facts disclosed by the record upon appeal herein, we are unable to perceive any substantial difference between the case at bar and that of The People ex rel. The Equitable Gas Light Company v. Barker et al., Tax Commissioners, etc. (144 N. Y. 94). With a change of figures, the opinion seems entirely applicable to the facts and circumstances presented by the record before us. Following the conclusion reached in that case by the Court of Appeals, it would seem that the tax commissioners had a right to levy the assessment which they did, and the order vacating the same was erroneous. The order appealed from should be reversed, with costs and disbursements. Present — Van Brunt, P. J., O’Brien and Parker, JJ.


text:
    John P. Pils, Respondent, v. Manhattan Railway Company, Appellant.
   Judgment modified as stated in opinion, and affirmed as so modified, with costs.—

Per Curiam:

We think the judgment is in all respects right, except upon the question of the award made, which upon the evidence we think was too high, and that it should be accordingly reduced and the rental damages fixed at $900, and the fee damages at $1.200; and, as so reduced, the judgment should be affirmed, without costs. Present — Van Brunt, P. J., O’Brien and Parker, JJ.


text:
    Ann Reilly, Respondent, v. Manhattan Railway Company, Appellant.
   Judgment affirmed, with costs.—

Per Curiam:

It is urged by the appellant that the learned court erred because it states among its grounds for the decision that the value of so much of the plaintiff’s easements belonging to the premises No. 922 Third avenue, over and abo\ e the value of any and all general and special benefit to said premises arising from the construction, maintenance and operation of said elevated railroad in front of them, as was taken by defendants, was and is the sum of $1 ,'200. It is claimed that this statement is clear and positive; that the value of the easements taken over and above any benefits conferred on the premises is $1,200; and that the court overlooked the point that the easements themselves had been adjudged by the Court of Appeals to have had no value in themselves, but that it is the damage to the premises to which they were attached resulting from their destruction, for which compensation is awarded. We think it to plain that the learard court attempted in follow the rule in the Court of Appeals is this respect; and that there is no question but that resultant damage was that for which compensation was intended to be made Upon an examination of the evidence we see no reason for interfering with the court below, and think the judgment should be affirmed, with costs. Present— Van Brunt, P. J., O’Brien and Parker, JJ.


text:
    George Goetting, Respondent, v. Manhattan Railway Company, Appellant.
   Judgment modified as stated in opinion and affirmed as modified, without costs.—

Per Curiam:

The only question which it is necessary to consider is that in regard to the amount of the award. The otner points which have been raised upon this appeal have been disposed of in previous cases, and it is not necessary now to rediscuss them. We think upon an examination of the testimony that the award is larger than the evidence warranted. It seems to us that the same should be reduced to the sum of $1,500, fee damage, and $931.50, rental damage, and for these amounts the judgment should be affirmed, without costs. Present — Van Brunt, P. J., O’Brien and Parker, JJ.


text:
    The People of the State of New York ex rel. Hecker-Jones-Jewell Milling Company v. Edward P. Barker and Others.
   Order affirmed, with costs, on opinion of court below.


text:
    Max Gabriel and Another v. William H. Arnott and Others.
   Judgment affirmed on opinion of Parker, J., in Schillinger Fire Proof Cement & Asphalt Company v. Arnott (ante, p. 182).


text:
    John H. Seebeck and Others, Appellants, v. Charles C. Johnson, Respondent.
   Order modified by simply allowing service of affidavit oi merits on payment of ten dollars costs and costs of this appeal. The question of amendment of answer to be left to Special Term upon application for that purpose. No opinion.


text:
    James Talcott, Respondent, v. National Credit Insurance Company, Appellant.
   Order affirmed, with ten dollars costs and disbursements. No opinion.


text:
    Jacob S. Rogers, Respondent, v. New York & Texas Land Company, Appellant.
   Order affirmed, with leave to apply for stay of entry of final judgment on coming in of referee’s report. No opinion.


text:
    In the Matter of Sophia Moss.
   We think motion should be made at Special Term. It is there that application for judgment on special verdicts snoukl be made. Motion dismissed.


text:
    Charles H. Wade, Respondent, v. Solomon Goldsmith, Appellant.
   Order reversed and motion granted, with costs. No opinion.


text:
    Cochrane Carpet Company, Respondent, v. Henry C. Howells, Jr., and Another, Appellants.
   Order affirmed, with ten dollars costs and disbursements. No opinion.


text:
    Emil Thiele, Appellant, v. William G. Pierson and Another Respondents.
   Order affirmed, with, ten dollars costs and disbursements. No opinion


text:
    Artemus S. Cody, as Executor, etc., Respondent, v. William de W. Bruce, Appellant.
   Decree affirmed, with costs. No opinion.


text:
    James A. Merritt, Respondent, v. John A. Fowler, Appellant, Impleaded, etc.
   Order affirmed, with ten dollars costs and disbursements. No opinion.


text:
    In the Matter of the Manhattan Railway Company, Appellant, v. August Klipstein and Others, Respondents.
   Order reversed, with costs, unless stipulation be given to reduce award in respect to No. 122 Pearl street to $7,250, and in respect to Nos. 129,181,133 and 135 Pearl street to $42,500. No opinion.


text:
    Empire Warehouse Company, Plaintiff, v. Peter Mallett, as Surviving Partner, Defendant.
   Motion for reargument denied.


text:
    Ada M. Dow-Currier, Respondent, v. David Henderson, Appellant.
   Motion denied, with ten dollars costs. The case of Tozer v. N. Y. C. & H. R. R. R. Co. (105 N. Y. 617) was not overlooked, hut the question arose in that case quite differently from the manner in which it is presented in the case at bar.


text:
    John Hahnenfield, Appellant, v. David Jacobson, Respondent.
   Appealed dismissed, with ten dollars costs.


text:
    John McQueen, Receiver, etc., Respondent, v. Tobias New, Appellant, Impleaded, etc.
   Judgment affirmed, with leave to defendant to answer over on payment of costs. No opinion.


text:
    Sarah Gleeson, as Administratrix, Appellant, v. John Brummer, Respondent.
   Reargument ordered.


text:
    William Dempsey, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
   Interlocutory judg-1 ment affirmed, with costs, with leave given ¡ to defendant to answer upon payment of i costs of the demurrer and of this appeal. Leave granted to appeal to the Court of Appeals. (See certificate filed with clerk.)


text:
    The City of Syracuse, Respondent, v. Skaneateles Paper Company, Lakeside Paper Company, Forest G. Weeks and Sarah A. Weeks, Appellants, Impleaded with Richard Stacey and Others.
   The portion of the order of the Special Term of June 17,1893, entered June 30, 1893, directing an amendment of the petition and schedules, so far as appealed from, vacated without prejudice to either party.— Mem. Per Curiam : Inasmuch as our opinion in the principal case leads to a reversal of a preliminary judgment and vacating the appraisals and reversing the orders of confirmation, and as it will become necessary, if the plaintiff further prosecutes this proceeding, to amend its petition and schedule, it is, therefore, unneceSvSary to pass upon the question of the propriety of the discretion exercised by the Special Term in granting the order appealed from. We may, therefore, properly vacate the order without prejudice to either party and without costs to either party, so far as it is appealed from. The portions of the order of the Special Term of June 17,1893, entered June 30, 1893, directing an amendment of the petition and schedules, so far as appealed from, vacated without prejudice to either party and without costs to either party. Present — Hardin,, P. J., Martin and Merwin, JJ.

      See ante, page 441.


author: Mem. Per Curiam :

text:
    The City of Syracuse, Respondent and Appellant, v. The Skaneateles Paper Company, Lakeside Paper Company, Appellants and Respondents.
   Order vacated and set aside, without costs to either party.—

Mem. Per Curiam :

The results reached in The City of Syracuse v. Richard M. Stacey and Others,* as evidenced by our opinion and decision in that case, seem to supersede the necessity of considering and deciding the questions presented by the order involved in this appeal. Order vacated and set aside, without costs to either party. Present — Hardin, P. J., Martin and Merwin, JJ.


author: Mem. Per Curiam:

text:
    The City of Syracuse, Respondent, v. Skaneateles Paper Company, The Lakeside Paper Company and Others, Appellants.
   Appeal dismissed, without costs to either party.—

Mem. Per Curiam:

Inasmuch as the conclusion has been reached by this court in the case of The City of Syracuse v. Richard v. Stacey and Other ,* for the reasons stated in the opinion of Hardin, P. J., therein, and the judgment and order appointing commissioners, and the order of confirmation of their report, should be reversed and the appraisal vacated, as will more fully appear by reference to the order made in accordance with the opinion in that case, it is deemed unnecessary to consider -the merits of the appeal from the order denying the motion made by the defendants to vacate and set aside the decision and judgment and orders in said proceeding, and, therefore, the appeal from the order herein referred to is dismissed, without costs to either party. Appeal dismissed, without costs to either party. Present — Hardin, P. J., Martin and Merwin, JJ.


text:
    The City of Syracuse, Appellant, v. Richard M. Stacey, The Skaneateles Savings Bank and Others, Respondents.
   Order, so far as it awards costs and extra allowance to any of the respondents against the plaintiff, vacated and set aside.—

Mem. Per Curiam :

Inasmuch as we have reached the conclusion at this term, for the reasons stated in the opinion of Hardin, P. J., in The City of Syracuse v. Richard M. Stacey and Others,* that the order of confirmation and the judgment of the Special Term appointing commissioners should he reversed and the appraisal vacated and set aside, it follows as a sequence that the order awarding costs to the respondents against the plaintiffs and -an- extra allowance, in so far as it is appealed from, should fall and be vacated. Order, so far as it awards costs and an extra allowance to any of the respondents against the plaintiff, vacated and set aside. Present — Hardin, P. J., Martin and Merwin, JJ.


text:
    The City of Syracuse, Respondent, v. Richard M. Stacey, Leonard H. Earll, The Glenside Woolen Mills, Central New York Electric Light and Power Company, Simon D. Paddock, George Barrow and Others, Appellants.
   Order denying motion to send back to the commissioners of appraisal herein the report made by them on May 7,1894, vacated and set aside, without costs to either party.—

Mem. Per Curiam :

Having at this term reached the conclusion, for the reasons stated in the opinion of Hardin, P. J., in The City of Syracus v. Richard M. Stacey and Others,* that the judgment and order appointing the commissioners should he reversed and appraisal vacated .and the order of confirmation reversed, it is unnecessary to pass upon the questions presented by the appeal herein, ana the order should be vacated and set aside. Order denying motion to send back to the commissioners of appraisal herein the report made by them on Slay 7, 1894, vacated and set aside, without •costs to either party upon this appeal. Present — Hardin, J?. J., Martin and Blerwin, JJ.


text:
    The City of Syracuse, Respondent, v. Richard M. Stacey and Others, Appellants.
   Motion denied, without costs to either party.


text:
    First National Bank of Syracuse, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
   Motion denied.


text:
    Frank McClanathan and Another, Respondents, v. William Friedel, Appellant.
   Motion for leave to appeal to the Court of Appeals denied.


text:
    George C. Clark and Others, Respondents, v. James Sheridan and Others, Appellants.
   Judgment affirmed, with costs. No opinion.


text:
    The Fitchburgh Railroad Company, Appellant, v. James E. Kennedy, Respondent.
   Judgment affirmed, with costs. No opinion.


author: Putnam, J.:

text:
    Abram Meddaugh, as Administrator, etc., Respondent, v. The New York, Ontario and Western Railway Company, Appellant.
   Judgment affirmed, with costs. —

Putnam, J.:

This case is a close one, but I am inclined to think that the trial judge properly submitted the question of contributory negligence to the jury. As the deceased approached the railroad crossing his view to the east was cut off by the Wilkinson store, twenty-eight feet wide and seventy feet deep and only seven feet from the track. He was sitting on the rear end of the wagon, eighteen or twenty feet from the head of the horses. When the horses went on to the railroad track he was prevented from looking to the east by the store. He could not look down the track until he was twelve feet from it, and, when his horses must have crossed. As the witness Leroy testified : “ t the time Meddaugh drove on the track he could not have seen this engine if he had looked. I think that as soon as it was possible for him to see the engine he made an attempt to get off. He looked around as soonashecould see. * * # Ingoing from where he stopped to wait for this freight engine he did not have any opportunity to see the railroad until he got clown to Wilkinson’s store, and then coul'l not see it except beyond the switch. If the train was behind the store, or between the switch and the store, he could not see it looking through there.’' I think this evidence raised a question of fact as to the contributory negligence of deceased that was properly submitted to the jury. (Cook v. N. Y. C. & H. R. R. R. Co. 35 N. Y. St. Repr. 525; 128 N. Y. 635.) I am, therefore, in favor of affirming the judgment. Mayham, P. J., concurred ; Herrick, J., dissented.


text:
    Edward Moynehan and James Mead, as Executors of the Last Will and Testament of Daniel Moynehan, Deceased, Appellants, v. The President, Managers and Company of the Delaware and Hudson Canal Company, Respondent.
   Judgment affirmed, with costs. No opinion.


text:
    The Standard Fertilizer Company, Appellant, v. Edward D. Cheney, Respondent.
   Judgment affirmed, with costs. No opinion.


text:
    John Langan, Respondent, v. Michael Clifford, Appellant.
   Judgment affirmed, with costs. No opinion.


text:
    Jane Heath, Respondent, v. The Glens Falls, Sandy Hill and Fort Edward Street Railroad Company, Appellant.
   Judgment affirmed, with costs. No opinion.


text:
    In the Matter of the Last Will and Testament of Hester Way, Deceased.
   Decree of surrogate affirmed, with costs and disbursements of this appeal. No opinion.


text:
    Addison Loucks and George K. Daley, as Administrators of the Goods, Chattels and Credits, which were of Christina Loucks, Deceased, Appellants, v. Lewis L. Johnson, Charity A. Sheffer and John J. Johnson, Interpleaded as Defendants by the Albany Savings Bank, Originally the Defendant in this Action, Respondents.
   Judgment affirmed, with costs and disbursements. No opinion.


text:
    Julius Scriver, Respondent, v. Dore E. Fairbrother and Others, Appellants.
   Judgment affirmed, with costs. No opinion.


text:
    Helen M. Hoyle, Respondent, v. Isaac Gonyea, Appellant, Impleaded with Others.
   Judgment affirmed, with costs. No opinion.


text:
    Nicholas La Pointe, Respondent, v. George Rickert. Appellant.
   Order affirmed, with ten dollars costs and disbursements. No opinion.


text:
    George W. Evans, Appellant, v. Patrick Carroll, Respondent.
   Order affirmed, with ten dollars costs and disbursements. No opinion.


author: Mem. Per C"rtam:

text:
    The People of the State of New York, Respondent, v. Thomas Maxwell, Appellant.
   Judgment of < onviction reversed.—

Mem. Per C"rtam:

This judgment should be reversed. The circumstances are strongly suspicious, but are not sufficient to warrant convicción; they do not exclude every hypothesis except the guilt of the defendant. Present — Putnam ancl Herrick, JJ.


text:
    Hiram L. Washburn, as Receiver, Plaintiff, v. Andrew Dettinger, Defendant.
   Decision and order amended as asked in the moving papers. No opinion.


text:
    Joseph J. Bach, Respondent, v. Charles I. Skinner, Appellant.
   Order affirmed, with costs and disbursements. No opinion.


text:
    Joseph Amo, Respondent, v. The Adirondack Sanitarium Company, Appellant.
   Order affirmed, with costs and disbursements. No j opinion.


text:
    Joseph Murray and Alfred E. Doty, Respondents, v. Ira W. Ketchum, Appellant.
   Order affirmed, with ten dollars costs and disbursements. No opinion.


text:
    In the Matter of the Guardianship of Jay Chawgo, a Minor.
   Order affirmed, with costs and disbursements. No opinion.


text:
    Albany Brass and Iron Company, Appellant, v. Charles H. Hoffman, Jr., Respondent.
   Order affirmed on the opinion of the court below, with ten dollars costs and disbursements. No opinion.


text:
    In the Matter of the Estate of Henry G. Lapham.
   Blotion to correct decision so that it shall award costs to the appellant at the rates allowed upon an appeal from a judgment granted. No opinion.


text:
    Lewis A. Young, Respondent, v. Clark L. Jordan, Appellant.
   Judgment affirmed, with costs and disbursements. No opinion.


text:
    The People of the State of New York ex rel. Isaac Leroy, Appellant, v. John H. Foley, Respondent.
   Judgment affirmed, with costs. No opinion.


text:
    Nicholas J. Barry, Respondent, v. Bridget Gibbons, Appellant.
   Order affirmed, with costs and disbursements. No opinion. .Herrick, J., not acting.


text:
    Robert A. Johnston, Appellant, v. Joseph Meany, Executor of the Last Will and Testament of Patrick W. O’Reilly, Deceased, Respondent.
   Order denying motion to open default affirmed. Order granting extra allowance reversed, — without costs. No-opinion. Herrick, J., not acting.


text:
    Thomas S. Safford, Appellant, v. Frank D. Safford, Respondent.
   Order affirmed, with costs and disbursements. No opinion. Putnam, J., not acting.


text:
    John A. Smith, Respondent, v. The Central Vermont Railroad Company, Appellant.
   Judgment affirmed, with costs. No opinion.


text:
    Jeremiah B. Keech, Appellant, v. Gilbert G. Ottman and William R. Ottman, Respondents.
   Judgment affirmed, with costs. No opinion.


text:
    Eli Valentine, Appellant, v. Edward Applebee and Alice B. Applebee, Respondents.

      Husband midwife — agency of husband — complaint alleging acquiescence by wife.

    No presumption arises from the marriage relation that the husband is agent for the wife, and if such an agency exists it must be alleged and proved.
    Where, in an action brought to recover for worli, labor and services rendered in the construction of a house, the complaint alleges that the land upon which the house was erected was conveyed to the wife for a consideration paid by the husband ; that subsequently the plaintiff gave the husband credit for the debt in question supposing him to be the owner, and that the wife knew of the work, labor and services being rendered, but interposed no objection, no cause of action is alleged against the wife.
    Appeal by tlie plaintiff, Eli Yalentine, from a judgment of the Supreme Court in favor of tlie defendant Alice B. Applebee, entered in tlie office of tlie clerk of tlie county of Westchester on the 12th day of January, 1895, upon tlie dismissal of the complaint directed by the court after a trial at Westchester Circuit before the court and a jury, with notice of an intention of bringing up for review upon such appeal an order entered in said clerk’s office on tlie 10th day of January, 1895, dismissing the complaint as to said defendant.

      Frank L. Yowng and Fra/nk Gardner, for the appellant.

      William G. Yalentine, for the respondents.
   Brown, P. J.:

The complaint in this action was dismissed as to the defendant Alice B. Applebee upon the ground that it did not state a cause of action against her.

The action was brought to recover the value of materials furnished and used and labor performed in the erection of a dwelling house on property of which said defendant is alleged to be the owner. The complaint alleges that the defendants, are husband and wife, and that on April 2, 1892, the property on which the house was erected was conveyed to the wife for a consideration paid by che husband.

The fifth, seventh and eighth allegations of the complaint are as follows:

“Fifth. That at the special instance and request of the said Edward Applebee, the plaintiff sold and delivered material and furnished work, labor and service in the construction of a dwelling house on the said premises, between the first day of July, 1892, and the first day of January, 1893, and that the said material and work, labor and service were reasonably worth the sum of one hundred and seventy-three ($173.46) dollars.”
“ Seventh. That the said materials were furnished and delivered, and said work, labor and service rendered to and with the knowledge of the said Alice B. Applebee, 'and that all said materials were furnished, and the work, labor and service rendered, as it now appears, for the benefit of her separate estate, and that the said Alice B. Applebee interposed no objection thereto.
Eighth. That at the time the said materials were furnished, and the work, labor and service rendered, the plaintiff believed that the said Edward Applebee was the owner of the said premises, and that the plaintiff received no intimation, suggestion or information from the said Alice B. Applebee or any other person that the said Edward Applebee was not the owner of the said premises.”

These facts did not create a cause of action against the wife. (Jones v. Walker, 63 N. Y. 612; Travis v. Scriba, 12 Hun, 391; Bannen v. McCahill, 30 N. Y. St. Repr. 305 ; Ainsley v. Mead, 3 Lans. 116.)

The agency of the husband cannot be presumed ; it must be alleged and proved. While agency may be implied from facts alleged, the allegations in the complaint do not permit such implication in the case before us. The only fact upon which agency is claimed is the relation of the parties. This is not sufficient. The debt was contracted by the husband, and the plaintiff gave him credit believing he was the owner. The wife is not alleged to have given any authority to the husband whatever in the premises, and so far as the allegations of the complaint show the contract was the husband’s alone. The case cannot be considered, therefore, as one of an undisclosed principal. While the fact may be that the husband was the wife’s agent we must affirm the judgment because that fact is not made to appear. If such was the fact, instead of permitting judgment to go against him and appealing, the plaintiff should have applied for leave to amend his complaint.

The judgment must be affirmed, with costs.

Cullen and Dykman, JJ., concurred.

Judgment affirmed, with costs.