author: Mekwin, J.:

text:
    Ada S. De Van, Respondent, v. The Commercial Travelers’ Mutual Accident Association of America, Appellant.

      Accident insurance■ — drowning is a death by “external, violent or accidental means” — presumption against suicide — whether ike insured was intoxicated at the time of his death and whether that was its cause are questions for the jury — sufficiency of pi'oofs of death.

    Involuntary death by drowning is a death by “external, violent or accidental means,” within the meaning of a policy of .accident insurance.
    Where it appears that a violent death was the result either of accidental injuries or of a suicidal act of the deceased, the presumption is against suicide.
    The questions whether an insured person was under the influence of intoxicating liquors at the time of his death, and whether the death occurred in consequence thereof, should be'submitted to the jury for its decision under all the circumstances of the case.
    Where proofs of death have been made on blanks furnished by an insurance company, and the company has retained such proofs of death from the twenty-ninth of January until the third of April, the time when it refused to pay the claim of the insured, the company is estopped from objecting to the proofs of death as insufficient.
    Appeal by the defendant, The Commercial Travelers’ Mutual Accident Association of America, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oneida on the 6th day of February, 1895, upon the verdict of a jury rendered after a trial at the Oneida Circuit, and also from an order entered in said clerk’s office on the 16th day of February, 1895, denying the defendant’s motion for a new trial made upon the minutes.

      M. W. Van Aalcen, for the appellant.

      8. M. Lindsley, for the respondent.
   Mekwin, J.:

This action is based on a certificate of membership issued by the defendant to Theodore J. De Van, the husband of the plaintiff, on the 17th day of March, 1888, in and by which the defendant, for certain considerations therein named, agreed to pay to the plaintiff the sum represented by the payment of two dollars by each member of the association, not to exceed the sum of $5,000, within ninety days after satisfactory proof shall have been duly filed with its secretary that, the said Theodore Jay De Van, at any time during the continuance: of this membership, shall have sustained bodily injuries, effected through externa], violent or accidental means, within the intent and-meaning of this contract, and the conditions hereto annexed, and' such injuries alone shall have occasioned death within ninety days from the happening thereof.”

In one of the conditions annexed it was provided that the benefits under the certificate should not extend to any case except where the injury is the approximate and sole cause of the death or dissjbility, or when the injury may have happened while the member was, or in consequence of his having been, under the influence of intoxicating drinks, or to any death or personal injury, unless the-claimant under this certificate shall establish, by direct and positive: proof, that the death or bodily injury was caused by external, violent and accidental means, and was not the result of design on the-part of the member.”

The defenses were : (1) That the insured committed suicide; (2)< that his death occurred in consequence of his having been under the-influence of intoxicating liquors; (3) that it occurred while he was-under the influence of intoxicating liquoi’s; (J) that the claimant did not establish, by direct and positive proof, that the death was caused by external, violent and accidental means, and was not the result of design on the part of the member.

The body of De Van, the insured, was found between five and six o’clock in the morning of July 16, 1893, in the canal at the foot of Mulberry street in the city of Syracuse, at or near the termination of a sidewalk running up to the margin of the canal, and which was then unprotected. There had previously been a bridge there, and one was then in process of construction. De Van was last seen alive about two o’clock of that morning at or near a hotel in that vicinity. It was a very warm and muggy night, and the claim of the plaintiff is that the decedent, in attempting to cross the canal, .accidentally fell in and was drowned.

It was practically undisputed that De Van came to his death by «drowning. Involuntary death by drowning is a death by external, violent and accidental means, within the meaning of a certificate or policy of the kind here in question. (Tucker v. Mut. Ben. Life Ins. Co., 50 Hun, 51; Manufacturers' Acc. Ind. Co. v. Dorgan, 58 Fed. Rep. 954; 2 Bacon Ben. Soc. § 484.) Where, from the facts of the case, it appears that a violent death was the result either of accidental injuries or of á suicidal act of the deceased, the presumption is against the latter. (Mallory v. The Travellers' Ins. Co., 47 N. Y. 52.)

Very clearly the question whether the decedent committed suicide was for the jury. There was direct and positive proof as to the cause of the death and of the surrounding circumstances, from which it was for the jury to say whether or not the death was the result of design on the part of the member. The character or grade of the evidence was, we think, sufficient to answer the requirement of the condition on that subject. (Peck v. Equitable Acc. Association, 52 Hun, 259; Utter v. Insurance Co., 65 Mich. 545; 2 May on Ins. [3d ed.] 1191.)

The main question in the case relates to the defense that the death occurred when the insured was under the influence of intoxicating liquors. This proposition the jury in effect answered in the negative, and the claim of the appellant is that the verdict in that regard is against the evidence. It was shown on the part of the appellant that De Van was at Syracuse on the night of Wednesday, July twelfth, and that at divers occasions from that time until a short time before he was found drowned in the canal, he drank intoxicating liquor. No doubt the jury might have found from the evidence that he was under the influence of liquor when he fell into the canal, but whether they should necessarily have found that is another question.

• One of the witnesses for the defendant, who was with the decedent a large portion of Friday night and Saturday, testified that when he last saw him, about half-past six Saturday evening, he was all right. On the part of the plaintiff it was shown by Mr. Larrabee, who for several years had business dealings with De Van, that he, De Van, came into the office of the witness about four o’clock in the afternoon of Friday, July fourteenth, and remained there about an hour, so that the witness had an opportunity to observe whether he was under the influence of liquor, and. that at that time there was no indication of his being intoxicated, or that he had been drinking, and that in his judgment he was perfectly sober. Mr. Young, the partner of Larrabee, was present on the same occasion, and corroborates the evidence of Larrabee. Mr. Mills, who was with DeVan for several hours Saturday night and up to a short time before he was found drowned, and was the last person who saw him alive, testified that although during the night De Van drank several times he was not intoxicated, and that he couldn’t say that he was under the influence of liquor. This witness also described the situation and appearance of De Van during the night, and when he left him. Another witness testified that ten o’clock or a little after on Saturday night, De Van came into a restaurant where she was at work, talked with her and remained a short time, and that there was no indications in the least that he had been drinking.

Whether or not De Van was at the time of the accident in the condition claimed by the appellant was a matter of inference to be drawn not only from such oral evidence as the jury considered credible, but also from all the surrounding circumstances that appeared in the case. It was peculiarly a question for the jury, and their conclusion should not, we think, .be disturbed. The case of Couadeau v. Am. Acc. Co. (95 Ky. 280) seems to be quite in point as to the right of plaintiff to have the question determined by the jury-

For similar reasons the qirestion whether the death occurred in consequence of the insured having been under the influence of intoxicating liquors, was for the jury. •

It is suggested by the appellant that the proofs of death furnished by the plaintiff to the defendant were not sufficient. Blanks were used that were furnished by defendant, and the proofs were delivered to the defendant on the 29th of January, 1894, within the time allowed by the certificate. They were retained by the defendant and not objected to, and, on the 3d of April, 1894, the defendant refused to pay the claim. The defendant is not in a position to object to the proofs. (Titus v. Glens Falls Ins. Co., 81 N. Y. 410.) The judgment should, we think, be affirmed.

Hardin, P. J., and Martin, J., concurred.

Judgment and order affirmed, with costs.


source: Caselaw Access Project

author: Merwin, J.:

license: Public Domain

text:
    George Borgfeldt & Co., Appellant, v. George B. Wood and Others, Respondents.

      Bale — what constitutes a rescission thereof for fraud — the disaffirmance must be communicated to the vendee — leviable interest of the vendee until rescission— when replevin will not lie.

    A vendor of goods has a right to rescind the sale for fraud, but until he has exercised his option to rescind, either directly or by some act in disaffirmance of the sale, the purchaser has a leviable interest in the goods, and if they are levied upon by attachment or execution against the purchaser before rescission the provisions of subdivision 3 of section 1690 of the Code of Civil Procedure, as it stood in 1893, forbid the vendor from thereafter maintaining an action to recover the goods.
    Rescission is the legal consequence of the election of the defrauded party to repudiate the contract, and it takes its date from the time when he announces his election to the opposite party.
    A representative of a vendor met the vendee at a meeting of his creditors and charged him with insolvency at the time the goods were purchased, to which the vendee replied that he was not insolvent at that time, and that he had only recently found out that he was so. After leaving the creditors’ meeting the vendor went to see his attorney, consulted with him, and finally instructed him to replevy the goods at once. After this conversation, and before the goods were replevied, they were levied upon under executions against the vendee.
    The vendor did not, at the creditors’ meeting, communicate to the vendee his intention of replevying the goods, or take any definite position towards the vendee at any time before the goods had been levied on under executions issued in favor of other creditors.

      Held, that the evidence did not show a rescission of the contract of sale before the levy by the sheriff;
    That nothing which the vendor said to the vendee disabled the vendor from suing upon the contract, and that any mental determination to seize the goods, or any instructions to his lawyer not communicated to the vendee, were ineffectual to work a rescission.

      Appeal by tbe plaintiff, George Borgfeldt & Co.,, from a judgment of the Supreme Court in favor of tbe defendants, entered in tbe office of tbe clerk of tbe county of Onondaga on tbe 19th day of March, 1895, upon the verdict of a jury rendered by direction of tbe court after a trial at tbe Onondaga Circuit.

      James D-wrme and Charles E. Ide, for tbe appellant.

      C. W. Andrews, for the respondents.
   Merwin, J.:

In and prior to September, 1893, tbe plaintiff was a corporation engaged in tbe mercantile business in New York city, and tbe defendants George B. and Charles W. Wood were merchants, doing business at Syracuse, under tbe firm name of Reuben Wood’s Sons. Between January 1, 1893, and September 1, 1893, tbe plaintiff sold and delivered to tbe Woods goods to tbe amount of $4,000 and upwards. On or about September 14, 1893, tbe Woods failed in business, having been for some time insolvent, and on tbe 15th of September, 1893, several judgments were obtained against them and entered in Onondaga county, and on tbe same day executions were issued to tbe sheriff of that county and levy made by him on tbe property described in tbe complaint with other property. On the 16th of September, 1893, the plaintiff commenced tbe present action in replevin against tbe Woods and tbe sheriff to obtain tbe possession of a portion of tbe-goods previously sold and delivered by plaintiff to tbe Woods. In tbe affidavit upon which tbe requisition was based, it is alleged that at tbe time tbe Woods obtained tbe goods, they knew themselves to be insolvent and obtained tbe goods with a preconceived intent not to pay plaintiff therefor. It was also alleged that tbe defendant, tbe sheriff, claimed to bold tbe goods by virtue of executions issued to him against tbe Woods, Tbe goods were taken on tbe requisition from the possession of tbe sheriff, and tbe value was at tbe trial agreed on at $2,475.98. At the close of the evidence tbe court directed a verdict for tbe defendants, dismissing tbe complaint and for a return of tbe goods replevied or for the value fixed at $2,475.98, and interest on that sum from September 16, 1893, as damages for detention.

The main question on this appeal arises over tbe application of tbe provisions of section 1690 of the Code of Civil Procedure. By that section, as it stood in 1893, it was provided that an action to recover a chattel cannot be maintained 3. Where it was seized by virtue of an execution, or a warrant of attachment, against the property of a person other than the plaintiff, and, at the time of the seizure, the plaintiff had not the right to reduce it into his possession.”

There is no doubt about the right of a vendor of goods to rescind the sale for fraud, but until the vendor has exercised his option to rescind, either directly or by some act in disaffirmance of the sale, the purchaser has a leviable interest in the goods, and if they are levied upon by attachment or execution against the purchaser prior to rescission, the provision of section 1690, above quoted, applies. (Wise v. Grant, 140 N. Y. 593.) In that case it was held that where, prior to any act on the part of the vendor showing an intention to rescind, the goods had been levied upon by virtue of an attachment against the purchaser, an action of replevin to recover the goods was not maintainable. It was there conceded that the bringing of the replevin was an act of rescission, but as that did not occur until after the levy on the attachment, the provision of section 1690 applied.

In the present case the replevin was not brought until after the levy by the sheriff, and the Wise case is authority to sustain the judgment, unless, as the plaintiff claims, there was, in substance, a rescission prior to the levy by the sheriff, in the afternoon of September fifteenth. Upon this subject it appears that on the eighth of September, the Woods called’a meeting of their creditors for the fourteenth of September in New York city. At that meeting the defendant Ohai-les W. Wood was present, and also, among others, Mr. liable, representing the plaintiff. Mr. Hable, as a witness for plaintiff, testifies : “ I told him (Wood) that I believed they were insolvent on the 1st of January, and that he received our goods by fraud. He had no right to accept them. He denied that. He said that they were not insolvent January 1st, and they only found that they were insolvent the Saturday before calling the meeting. Then the creditors spoke about accepting a compromise of 25 per cent, which was rejected and a proposition made that, if an offer of 40 per cent would be made, the creditors would possibly accept. That was in Mr. "Wood’s presence. I then left the meeting without acting upon the proposition. After leaving the meeting, on my way up town, I stopped in to see our lawyer, Mr. Dunne, and consulted him in regard to our matter. I instructed you to stai’t the same evening, if possible, for Syracuse; not to delay the matter at all, any more than you could possibly help. It was for the purpose of replevying the goods; talcing out replevin proceedings.” Upon cross-examination Kahle testifies: “ I have detailed, as far as I can remember, everything that I said to Mr. Wood on that day at that meeting. I left the meeting before he did. I said nothing to him at that time about beginning an action of replevin. * * * On my way home from the meeting-1 stopped to see Mr. Dunne, our lawyer. I submitted the statement to him; stated also that they were largely indebted to us; what steps we would take to protect our interests. I asked, so far as I remember, whether we could recover our goods, as I had no doubt they were obtained by fraud ■ — ■ false pretenses ; that these people, when they received our goods, were insolvent. I stated this to Mr. Dunne. I was convinced at that time of that fact.” It appears also from the testimony of Mr. Dunne that in the afternoon of September fourteenth' Mr. Kahle called on him for advice and he advised him to replevy the goods; that on the morning of the fifteenth he prepared an affidavit in replevin against the Woods alone, which Mr. liable signed ; that in the afternoon of the fifteenth he learned from a newspaper that judgments had been entered against the Woods, and he then changed the affidavit so as to include the sheriff, and sent for liable, who came and signed it; that on the sixteenth he came to Syracuse and replevied the goods. The summons in the action is dated the fifteenth, but was not delivered to any officer for service until the sixteenth. This is in substance the evidence from which it is claimed that there was a rescission prior to the afternoon of the fifteenth.

From this evidence it may be inferred that Mr. Kahlo, in the afternoon of the fourteenth, made up his mind to rescind the sale; but he had no communication with Wood after he so made up his mind, nor were the papers for bringing the replevin suit completed until the afternoon of the fifteenth and after the judgments and levy by the sheriff. There was no act by the plaintiff as to the property until the sixteenth. It is argued that the interview between Kahle ••and Wood at the creditors’ meeting on the fourteenth was a sufficient notice of the intention of Kahle to rescind the sale. He, however, said nothing as to what he intended to do, and he said nothing that would at all interfere with his siting on the contract. Besides, he did not in fact know then what he would do, and did not make up his mind until he advised afterwards with his counsel, and after that he did not see or communicate with Wood. We fail to see how the interview between Wood and Kahle, as testified to by Kahle, ■can be construed to be notice of an intention by plaintiff to rescind.

In Benjamin on Sales (6th ed., § 443) it is said that the rescission is the legal consequence of the election of the deceived party to repudiate the contract, and takes date from the time at which he .announces the election to the opposite party. (See, also, Stevens v. Hyde, 32 Barb. 171; 21 Am. & Eng. Ency. of Law, 84.)

We are of the opinion that the evidence given on the part of the plaintiff did not show a rescission before the levy of the sheriff, nor would it authorize the jury to find such a rescission. If there was an intention on the part of the plaintiff on the fourteenth or fifteenth to rescind, it was not in any way communicated or manifested to the Woods, nor was there any act on the part of the plaintiff that committed it on the subject until the replevin suit was in fact commenced.

The judgment appealed from is, therefore, correct within the authority of the Wise case.

Hardin, P. J., and Parker, J., concurred.

Judgment affirmed, with costs.


text:
    Harriet Babcock, an Infant, by Willis A. Babcock, her Guardian ad Litem, Respondent, v. Eugene A. Chase, as Sole Executor, etc., of Christopher J. Babcock, Deceased, Appellant.

      Contract — change of Christian name a sufficient consideration — a promise to parents for the benefit of their child— the child may enforce it.

    The complaint in an action alleged that the plaintiff was born on the 28th day of October, 1875, and was christened Catharine, and continued to be called Catharine Babcock until February, 1876, when her grandfather, the defendant’s testator, Christopher J. Babcock, desired her parents to change her name from 'Catharine to Harriet, and promised her and her parents for her that if this was-done he would pay to and leave her hy his will $500; that her name was changed in pursuance of such agreement, and was retained as changed, and that the decedent did not pay her any part of the said sum of $500, nor leave her that amount by his will.

      Held, that the change of name was a sufficient consideration for the promise; That the plaintiff could sue upon the promise;
    That it was made for her benefit, and that because of her relationship to the promisees, her parents, and by reason of her connection with the consideration, there resulted a sufficient privity between her and the promisees to enable her to enforce it.
    Appeal by the defendant, Eugene A. Chase, as sole executor, etc., of Christopher J. Babcock, deceased, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Chenango on the 19th day of April, 1895, upon the decision of the court rendered after a trial at the Broome Special Term overruling the defendant’s demurrer interposed to the plaintiff’s complaint on the ground that it did not state facts sufficient to constitute a cause of action.

      Norman M. Allen, for the appellant.

      D. L. AiJcyns, for the respondent.
   Merwin, J.:

It is alleged in the complaint that the plaintiff was born on the 28th of October, 1875, and soon after her birth was by her parents named Catharine and so christened; that she was called and her name continued to be Catharine Babcock until February, 1876, when Christopher J. Babcock, the defendant’s testator and the grandfather of the plaintiff, requested and urged her parents to change her name from Catharine to Harriet, which they were unwilling to do; that the decedent desired such change as the name of Harriet was a favorite name with him, and he desired it should be kept in the family ; that thereupon the decedent, in consideration that the parents of the plaintiff ■would change the name of the plaintiff from Catharine to Harriet, promised and agreed to and with the plaintiff and with her parents for her use and benefit that he would at his death, and in and by his last will and testament, pay to, leave for and give to the plaintiff the sum of $500; that the parents of the plaintiff in consideration of such promise of the decedent agreed to make the proposed change, and thereupon immediately, in performance of their said promise, did change the name of the plaintiff from Catharine Babcock to Harriet Babcock, and from that time to the present that lias been her name; that the decedent did not perform the agreement on his part, and- did not pay to, leave for or give to the plaintiff the sum of $500, or any sum, by his will, which has been duly admitted to probate and-letters issued to the defendant, the executor therein named; that the decedent by his will gave all his property to other parties and made no provision for the plaintiff. Judgment is demanded for $500 and for such other relief as shall be just and equitable.

It is claimed by the appellant: (1) That there was no consideration for the promise with which it is sought to charge the estate of the testator, and (2) that there was no privity of contract between the testator and the plaintiff, and that the plaintiff cannot, therefore, enforce the promise of the testator to plaintiff’s parents.

1. In Wolford v. Powers (85 Ind. 291) it was held that a promissory note, executed in consideration of a parent naming a child after the maker of the note, and in pursuance of a promise made by him that if the child were so named he would provide generously for its education and support in life, is based on a sufficient consideration. In that case it is said: “ The surrender at the intestate’s request of the right or privilege of naming the appellant’s child was the yielding of a consideration. The right to give his child a name was one which the father ¡Dossessed, and one which he could not be deprived of against his consent. If the intestate chose to bargain for the exercise of this right he should be bound, for by his bargain he limited and restrained the father’s right to bestow his own or some other name upon the child. We can perceive no solid reason for declaring that the right with which the father parted at the intestate’s request was of no value. It is difficult, if not impossible, to invent even a plausible reason for affirming that such a right or privilege is absolutely worthless. The father is the natural guardian of his child, and entitled to its services during infancy, and within this natural right must fall the privilege of bestowing a name upon it. In yielding to the intestate’s request, and in consideration of the promise accompanying it, the appellant certainly suffered some deprivation and surrendered some right. * * * It will not do to say that the bestowal of a name is a valueless act, and if once it be granted to be of some value, then, in the absence of fraud and oppression, it must be held to possess the value placed upon it by the contracting parties.” In Diffenderfer v. Scott (32 N. E. Rep. 87) it was held, following the Wolford case, that naming a child after the maker of a note is a sufficient consideration for the note given to the child.

In general a waiver of any legal or equitable right at the request of another party is a sufficient consideration for a promise. (Parsons on Contracts [8th ed.] *444.)

It is said: “A valuable consideration in the sense of the law may consist either in some right or benefit accruing to the one party, or some forbearance, detriment, loss or responsibility, given, suffered or undertaken by the other.” (Currie v. Misa, L. R. [10 Exch.] 162)— referred to in Hamer v. Sidway (124 N. Y. 545), where it also said that courts “ will not ask whether the thing which forms the consideration does in fact benefit the promisee or a third party, or is of any substantial value to any one! It is enough that something is promised, done, forborn or suffered by the party to whom the promise is made as consideration for the promise made to him.” It is also said, quoting from Pollock on. Contracts, 166, that “consideration means not so much that one party is profiting as that the other abandons some legal right in the present, or limits his legal freedom of action in the future as an inducement for the promise of the first.”

In Hamer v. Sidway (supra) a promise to pay the promisee $5,000-if he would refrain from drinking liquor, using tobacco, swearing, and _ playing cards or billiards for money until he should become twenty-one years of age, was held to be based on sufficient consideration. A. similar view was taken in Lindell v. Rokes (60 Mo. 249). In Earle v. Angell (157 Mass. 294) it was held that a promise to pay the promisee $500 if he would attend the funeral of the promisor was enforcible.

In view of the doctrine of the Wolford case and the general principle enunciated or approved in the Earner case, we are of the opinion that a sufficient consideration is alleged for the promise of the decedent. There is no question here about the adequacy. (Earl v. Peck, 64 N. Y. 598.) That has been fixed by the parties.

2. Can the plaintiff enforce the promise ? It was made expressly for her benefit, and by reason of the relationship between her and the promisees, and also by re,ason of her connection with the consideration there was such a privity between her and the promisees that she had a right to enforce the contract. This view is sustained by .authority. In 1 Comyns’ Dig. (5th ed., p. 310, note) the rule is stated : “ Where one for whose benefit a contract has been expressly made is nearly related to the party from whom its consideration moves, either may sue for the breach of it, though the pendency of either’s suit will preclude the other’s action.” This is based mainly on the ease of Dutton v. Poole (2 Levinz, 210), where the right of the child to sue was asserted. The authority of that case has been often recognized. (Shepard v. Shepard, 7 Johns. Ch. 63; Todd v. Weber, 95 N. Y. 193; Knowles v. Erwin, 43 Hun, 152; affd., 124 N. Y. 633; Sackett v. Sackett, 14 N. Y. St. Repr. 253.) The principle that relationship may be the basis of a privity sufficient for the action is also recognized in Bogardus v. Young (64 Hun, 405); Coleman v. Hiler (85 id. 547). In Vrooman v. Turner (69 N. Y. 283, 284) it is said: To give a third party who may derive a benefit from the performance of the promise, an action, there must be, first, an intent by the promisee to secure some benefit to the third party, and, second, some privity between the two, the promisee and the party to be benefited, and some obligation or duty owing from the former to the latter which would give him a legal or equitable claim to the benefit of the promise or an equivalent from him personally.” The plaintiff here has certainly an equitable .claim to the benefit of the promise. The plaintiff’s parents acted for her as well as for themselves in the transaction. They owed her a duty in that regard from which it may well be said a jnivity .arose sufficient for the maintenance of the action.

The case of Townsend v. Rackham (143 N. Y. 516), cited by the .appellant, related to a matter widely different from the present, and the general rule there stated had no reference to the somewhat exceptional cases like the one now under review. We are of the opinion that upon the facts alleged the plaintiff had a right to sue.

It is suggested by the appellant that no damages are alleged. If there was a breach of the contract, there was at least nominal damages. Besides, the allegation of tbe complaint is that tbe decedent would pay to tbe plaintiff tbe specified amount.

We are of the opinion that a cause of action is alleged.

Hardin, P. J., and Parker, J., concurred.

Interlocutory judgment affirmed, with costs, with leave to'defendant to answer in twenty days upon payment of the costs of the demurrer and of tbe appeal.


text:
    Mary A. Tinker, Respondent, v. The New York, Ontario and Western Railway Company, Appellant.

      Negligence —res gestee —when the plaintiff is not presumed to hare assented to state- . ments made in her presence.

    Upon the trial of an action brought to recover damages resulting from injuries caused by the alleged negligence of the defendant, it appeared that the accident in question happened at a railroad crossing, and that the plaintiff was thrown from a wagon; that subsequently the frightened horses ran for some distance; that her husband, the driver, finally stopped the horses, got out of the wagon, went back to where his wife was, to assist her to get up, and that she sat for a time where the accident occurred. A witness, who testified that he lived about twenty roda from the crossing, and who apparently did not see the accident, stated that he went to the place of the accident and asked the persons there what was the matter; that he had a conversation with the husband in the presence of the plaintiff. He was then asked by the defendant if the plaintiff’s husband had said to him in the presence of the plaintiff that the hack seat had tipped up and threw her out backwards upon the ground, which question was objected to. . It was not claimed that the plaintiff had taken any part in the conversation.

      Held, that the conversion was not admissible as a part of the res gestae, as it did not appear what length of time had elapsed after the accident and before the conversation;
    That, under the circumstances, the evidence was not admissible as a conversation had in the presence of the plaintiff;
    That the mere silence of a person when facts are asserted in her presence furnishes no ground for presuming her acquiescence in the assertion, unless the conversation is addressed to her under circumstances which call for a reply.
    Appeal by tbe defendant, Tbe New York, Ontario and Western Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in tbe office of tbe clerk of tbe county of Chenango on the 19th day of March, 1894, upon the verdict, of a jury rendered' after a trial at the Chenango Circuit, and also from an order entered in said clerk’s office on the 17th day of March, 1894, denying the defendant’s motion for a new trial made upon the minutes.

      Howard D. Newton and Edward B. Thomas, for the appellant.

      George P. Pucbney and George W. Pay, for the respondent.
   Merwin, J.:

The main questions ujion the merits in this case were considered by this court upon a former appeal (71 Hun, 431) and need not be reconsidered here. We find no good reason for departing from the views there expressed. They were in substance followed by the trial court on the trial now under review and all the material questions of fact .were submitted to the jury in a charge that as a whole presents no good ground for exception.

Our attention is called to a number of exceptions to rulings upon evidence. It is specially urged by the appellant that serious error was committed in rejecting evidence of what the husband of the plaintiff said as to the cause of the accident soon after it occurred. A witness was called by the defendant who, after testifying that he lived about twenty rods from the crossing where the accident happened, said : I remember the occasion when Mrs. Tinker was thrown from the wagon at that crossing; I saw the party there at the crossing after it occurred, and went out there at the time; when I got there they were kind of getting together, picking up tilings, picking up their shawls and robes and so on, and what fell out. I asked them what the matter was; I had a conversation with Mr. Tinker in the presence of Mrs. Tinker.” The witness was then asked the question, “ Did Mr. Tinker say to you in the presence of Mrs. Tinker that the back seat tipped up and threw-her out backwards on the ground ? ” The witness was also asked to state what conversation occurred then in the presence of Mrs. Tinker between the witness and Mr. Tinker.

This evidence is claimed to have been competent on two grounds: First, as part of the res gestee, and, second, as a conversation in the presence of the plaintiff.

It was not claimed tliat Mrs. Tinker took any part in the conversation. She was then suffering from the injury she had received and had to be assisted to the carriage. In 1 Greenleaf on Evidence (§ 197, note c) it is said: “The mere silence of one, when facts are asserted in his presence, is no ground of presuming his acquiescence, unless the conversation were addressed to him under such circumstances as to call for a reply. The person must be in a position to require the information, and he must ask it in good faith, and in a manner fairly entitling him to expect it, in order to justify any inference from the mere silence of the party addressed. If the occasion, or the nature of this demand, or the manner of making it, will reasonably justify silence, in a discreet and prudent man, no unfavorable inference therefrom should, on that account, be made against the party. And whether the silence be any ground of presumption against the party will always be a question of law, unless there is conflict in the proof of.the attending circumstances.”

Apparently the witness did not see the accident. He saw the party there at the crossing after it occurred, and then went to the place. How long it was after the accident that the conversation occurred is, therefore, left indefinite. According to prior evidence on the part of the plaintiff the frightened team ran some distance, and there had been time for the husband to stop it, get out of his wagon and go back to where his wife was and assist her to get up, and, as one witness says, “ she sat awhile there.” The conversation called for was not, as said in some of the cases, immediately after the accident.

■ Assuming the offered evidence to have been material, we are of the opinion that the court did not err in excluding it.

We have examined the other exceptions and find no good ground for reversal.

Hardin, P. J., and Martin, J., concurred.

Judgment and order affirmed, with costs.


text:
    Leonor Van Etten Taylor, Respondent, v. William J. Welsh, as Executor, etc., of Ann Eliza Stimson, Deceased, Appellant.

      Infant — when entitled to recover for her own services — promise to compensate by will — Statute of Limitations — personal transactions with a deceased person — materiality of evidence— Code of Civil Procedure, § 829.
    Where an infant sues for services rendered to a person, deceased at the time of the trial, and an important issue in the action is whether the services were to he paid for or were gratuitous, the plaintiff cannot testify that she attended the deceased in her lifetime, stayed with her at night, did errands for her and rendered many other menial services; such testimony is inadmissible under section 829 of the Code of Civil Procedure. Such evidence cannot be regarded as harmless because merely cumulative, as the fact that services of such a character were rendered is a circumstance worthy of consideration upon the question whether a promise was made to pay therefor.
    The Statute of Limitations does not run against a claim during the life of a promisor who has made a promise that he will compensate his creditor by a provision to be contained in his last will and testament.

      Semble, where an infant, with the assent of her father, performs services for a person upon a promise that she shall be compensated in such' person’s will, that this constitutes a relinquishment by the father of all claim for such services, and that a legacy, given by the debtor as compensation for such services, would be the property of the infant.
    Appeal by the defendant, William J. Welsh, as executor, etc., of Arm Eliza Stimson, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Delaware on the 12th day of April, 1895, upon the report of a referee.

      W. J. Welsh, for the appellant.

      Arthur More, for the respondent.
   Merwin, J.:

On December 13, 1893, the defendant’s testatrix died, being then about ninety years of age. In September, 1894, the-plaintiff presented to the defendant a claim against the estate of the deceased in the sum of $320.45 for “ services rendered for staying with her from August 4, 1883, to Oct. 4, 1888, making five years and two months at $1.25 per week........................... $335 45 “By cash...........'.............................. 25 00

$320 45”

The defendant doubted the justice of the claim, and thereupon, by stipulation, with the approval of the surrogate, it was under the statute referred.

'In liis report the referee finds that from August 4, 1883, to October 4, 1888, the plaintiff attended upon the testatrix, “ slept with her nights, done errands for her, emptied ashes, brought in coal, shoveled snow, done a great many things for her, all at her request, and for which she said she would satisfy plaintiff iu her will; ” that the services so rendered were reasonably worth the sum of one dollar and twenty-five cents per week; that the plaintiff at the time the services were rendered was an infant residing with and supported by her father, and at the time she completed the services was about eighteen years of age ; that “ the father of this plaintiff, upon the promise made by the said testatrix that she would satisfy plaintiff for said services in her will, consented that the plaintiff might perform such services, and such promise was made by the testatrix direct to the father, and he makes no claim for such services and never has made any claim for them ; ” that the testatrix made no provision for the plaintiff by her will; that the testatrix at the time of her death was indebted to the plaintiff in the sum of $310 for the services so rendered, and that the claim was not due till the death ; that the payment of the claim was unreasonably resisted by the defendant.

As matter of law the referee decided “ that the father of said plaintiff, by consenting that plaintiff might perform such services and be compensated by the testatrix satisfying plaintiff therefor in her will, in effect agreed that plaintiff was to have the pay for the services so performed as aforesaid for her own use and benefit, and he is estopped from ever claiming pay for said services himself; ” that the plaintiff was entitled to recover the sum of $310 and the costs of the action.

It is claimed by the defendant that the plaintiff is not entitled to recover for the reason that at the time the services were rendered,. she was an infant, residing with and under the control of her father. We are, however, inclined to the opinion that if the services were performed under an arrangement between the deceased and the father or between the deceased and the plaintiff with the assent of the father, that the plaintiff should be compensated by the deceased in her will, this was in substance a relinquishment by the father of all claim for such services, and permitted the plaintiff, as far as that transaction was concerned, to work on her own account. The legacy, if one had been given, would have belonged to the plaintiff, and, if so, the debt for which the legacy was to be given should be considered as belonging to her also. (See Stanley v. Nat. Un. Bank, 115 N. Y. 134; Kain v. Larkin, 131 id. 313; Shirley v. Bennett, 6 Lans. 515; Lind v. Sullestadt, 21 Hun, 366; Schouler’s Dom. Rel. [2d ed.] 346.) Whether the evidence in the case was sufficient to establish such an arrangement is not necessary here to be determined in view of our opinion on another feature of the case.

At the trial the plaintiff was called as a witness in her own behalf and was allowed to testify as follows, over the objection and exception of the defendant, properly taken that the evidence was inadmissible under section 829 of the Code of Civil Procedure: “ Q. Did you attend upon her (the testatrix) in her lifetime and stay with her nights for a considerable time ? * * * A. I did. Q. When did you commence % * * * A. August 4,1883, ahd I left there on or about October 4, 1888. Q. What did you do there ? * * * A. I stayed there with her nights, done errands, emptied ashes, brought in coal, shoveled snow and a great many things; * * * I did many errands for her about town.”

This evidence involved transactions and communications between the plaintiff and the deceased, and very clearly it was within the prohibition of section 829. (Campbell v. Hubbard, 38 Hun, 306; Heyne v. Doerfler, 124 N. Y. 505, 510; Ross v. Ross, 6 Hun, 182.)

It is, however, urged by the plaintiff that without this evidence. there is enough in the case to sustain the judgment. The referee, in his finding of the character and extent of the plaintiff’s services evidently followed the testimony of the plaintiff. It not only had a material bearing on the question of the value of the services, but also as to the probability of the existence of an arrangement for compensation by will. It was a serious question in the case whether there was any expectation of payment for the services except such as the testatrix might voluntarily choose to give. If the services were of the character and extent testified to by the plaintiff, it would be a circumstance worthy of some consideration on the subject of a promise to pay therefor. It should not be said that the evidence, above quoted, was harmless. The exception to the admission of this evidence is, we think, a good one, and calls for a new trial.

A point is made by the appellant as to the Statute of Limitations, but it is not claimed that that defense would be effective if there was an agreement to compensate by will. (Quackenbush v. Ehle, 5 Barb. 472.) The appellant also claims that the referee improperly found that the claim had been unreasonably resisted, and so awarded costs. There seems to be some plausibility at least to this contention, but it need^ not be considered now.

Hardin, P. J., and Martin, J., concurred.

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


text:
    William B. Reynolds, Respondent, v. Lydia Spencer and Addie J. Spencer, Appellants.

      Sale — ten months’ delay in delivery relieves the vendee from the obligation to accept and pay for the goods.

    Where goods are delivered to a carrier for the vendee ten months after the time at which it was agreed between the parties that the delivery would be made, the vendee is pot bound to accept them.
    Appeal by the defendants, Lydia Spencer 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 Schuyler on the 18th day of February, 1895, upon the report of a referee.

      George P. Wood, for the appellants.

      G. H. Everts, for the respondent.
   Merwin, J.:

The defendants, in 1893, were partners, doing business at Union Springs, Cayuga county, N. Y., under the firm name of the Spencer Manufacturing Company, and the plaintiff lived in Hector, Schuyler county. In January, 1893, the plaintiff and the defendants entered into an agreement by which the defendants agreed to make and deliver to the plaintiff on board the cars at Union Springs, on or before the 1st day of May, 1893, one drag saw, with the appurtenances thereto, of the agreed value of seventy-five dollars, which the plaintiff agreed to pay by delivering to the defendants certain property of the value, as the referee finds, of seventy-five dollars and upwards. The plaintiff, in pursuance of the agreement, delivered such property to the defendants on the 13th of February, 1893, and the defendants received the same and appropriated it to their own use. They did not, however, perform on their part by delivering to plaintiff the property which he purchased, and, as the referee finds, it has never been delivered. This action was brought on the 10th of March, 1.891, to recover of the defendants the sum of seventy-five dollars as damages for the breach by the defendants of the contract, and the réferee has awarded to the plaintiff that amount, with interest from June 1, 1893.

In defense, the main claim of the defendants is that on the 6th of March, 1891, they delivered the property purchased by the plaintiff, on board the cars at Union Springs, billed to the plaintiff, and sent him by mail the shipping bill. This, it is claimed, was under the contract a delivery to the plaintiff, so that the plaintiff, at the time of the commencement of the action, was constructively in possession of the property, and, therefore, not in a position to maintain the action. There is evidence that on the sixth of March the defendants delivered at Union Springs certain articles, and mailed to plaintiff the shipping bill. The plaintiff testifies that he never received the bill, and knew nothing about the delivery at Union Springs until long after the commencement of the suit, and that he refused to receive the property. It is not claimed that the plaintiff ever accepted tire property. There is evidence that the articles as delivered at Union Springs did not comprise all the articles that under the contract were to be delivered by the defendants as constituting the drag saw and its appurtenances.” If so, it would not be a good delivery. A delivery to a carrier, to be effective, must be of the quality and description and in amount as called for by the contract. (Mee v. McNider, 39 Hun, 347; Gutwillig v. Zuberbier, 41 id. 363; Benjamin on Sales [Bennett’s ed.], 330).

Besides, a delivery on the 6th of March, 1894, is not performance of an agreement to deliver on or before May 1,1893. In Benjamin on Sales {supra) it is said that a delivery of goods to a carrier at a much later time than ordered does not bind the purchaser to accept them, citing, among others, the case of Rommel v. Wingate (103 Mass. 327). But the defendants claim that the time for delivery was extended. On this subject the referee finds on sufficient evidence “ that at different times between the time when said drag saw was so to be delivered and the 1st day of January, 1894, the plaintiff requested the defendants to deliver the same to him, as they had agreed . to do, and that on or about the last day of August or first of September, 1893, the plaintiff requested the defendants to deliver said drag saw to him immediately, and gave them notice that if they did not deliver the same forthwith that he would have no use therefor, and would refuse to accept the same.” This notice was never withdrawn, or modified or waived. At least it should not be said, as matter of law, that there was a waiver. The finding of the referee is in effect against the defendants on this subject. We are of the opinion that the attempted delivery on the 6th of March, 1894, did not bind the plaintiff, and in the absence of an acceptance by the plaintiff is no defense to the action. We are referred to the case of Dunn v. Steubing (120 N. Y. 235), but that case is very unlike this.

Hardin, P. J., and Parker, J., concurred.

J udgment affirmed, with costs.


author: Mbrwin, J.:

text:
    Frrederick Weiler, Respondent, v. Equitable Aid Union, Appellant.

      Assessment life insurance — by-laws which, materially alter the obligation of outstanding certificates are unreasonable and invalid — vested rights cannot be defeated by a by-law — ultra vires contracts of a corporation, when enforced.

    Where a mutual benefit insurance company reserves the power to make future by-laws, the reservation must be taken to mean a power to make future by-laws which shall be reasonable.

      Whether the by-laws of such an association are reasonable must be determined in view of the objects and purposes of the association.
    In an action brought to recover upon a benefit certificate issued by an assessment life insurance association, it appeared that the defendant had promised, in effect, that if the plaintiff was living, and was in good standing in such association eleven years from the date of the certificate, it would pay the plaintiff the sum of $400; that the certificate was issued in 1883; that in 1893 the defendant passed a by-law which, in effect, changed the terms of the certificate so that no part of the sum mentioned therein was payable unless the plaintiff became totally disabled physically, and that he should then receive only a tenth part of the $400 annually.
    It appeared that in his application for insurance the-plaintiff had agreed to accept the certificate “ subject to such laws, rules and regulations as now exist or may hereafter be adopted by, and governing said corporation.” There was nothing to show that the plaintiff had in any other manner assented to' the change made in the by-law.

      Held, that the power reserved to make by-laws embraced only reasonable by-laws, and that the by-law made by the defendant was imreasonable ;
    That it struck down the certificate, and to that extent changed the objects and purposes of the corporation;
    That the right of the plaintiff to payment, upon the contingency named in the-certificate, was in the nature of a vested right;
    That the by-law amounted to a repudiation of a positive contract;
    That the defendant could not set up the defense of ultra vires; that where a.corporation has received the benefit of a contract which has been fully executed by the party with whom it has dealt, the corporation cannot, in an action to compel performance upon its part, raise the question of its power to make the-contract.
    Appeal by the defendant, the Equitable Aid Union, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Chenango on the 6th day of December, 1894, upon the decision of the court rendered after a, trial at the Chenango Circuit before the court without a jury.
    The appeal was heard upon the judgment roll, the facts having been agreed upon at the trial and appearing in the findings and decision of the court.

      Butler 8. Farrington and John W. Ghurch, for the appellant.

      W. B. Leach and George W. Bag, for the respondent.
   Mbrwin, J.:

This action is based on a certificate, called a benefit certificate or endowment life insurance policy, dated July 10, 1882, executed and delivered by the defendant to the plaintiff, in and by which the defendant, among other things, in effect agreed that, in case the plaintiff was living and in good standing eleven years from the date thereof, it would pay to the legal payee Of the certificate, conceded to be the plaintiff, the sum of-$400. .The plaintiff has at all times paid his dues and assessments to the defendant as they were made and levied, and has paid to the defendant the sum of $221 in assessments or premiums upon his certificate, and has in all things complied with the rules of the Union and is a member in good standing.

After the 10th of July, 1893, the plaintiff furnished the defendant with proper proofs and demanded the money, which was refused. It is found that the reason for not paying it was that, at the annual session of the Supreme Union of the defendant in March, 1893, a by-law was passed, taking effect May i, 1893, which provided that “All persons holding valid benefit certificates that have been or may be hereafter issued to them, who shall live to the period of expectation of life as designated in section 2 of this article ‘ Synopsis,’ and becoming totally physically disabled, shall be entitled to receive yearly a one-tenth part of the amount specified in their benefit certificate.” Provision was also made for determining the fact of total physical disability. In substance the claim was that the certificate of the plaintiff was, by the by-law, changed so that no part thereof was payable unless the plaintiff became totally disabled physically, and then only a tenth part thereof yearly.

The appellant now claims that it had no power to issue the endowment policy or certificate, and that, if it had, the plaintiff is bound by the new by-law and cannot, therefore, recover as he does not claim to be entitled under that.

The charter of the defendant, as it now is, appears in the findings. It seems to have been amended since the issuing of the certificate to the plaintiff, and the charter as it was then is not in the case. It is, however, found as matter of fact that “ The defendant is a foreign corporation, duly organized under the laws of the State of Pennsylvania, doing business at Columbus, in said state, duly authorized to' do business in the State of New York, and capable of suing and. being sued therein ; that the object and purpose of said corporation was, among other things, to do a life insurance business upon the assessment plan, establish a benefit fund, from and with which to pay fellow-members upon their arriving to a certain age, called £ expectancy,’ in accordance with certain tables adopted, one-lialf the amount named in the benefit certificate held by the member, .and in the event of death the sum specified in such certificate, not exceeding three thousand dollars.” In the constitution of the ■defendant which appears in the case it is stated that the defendant was incorporated March 22, 1879, in compliance with a statute of the Commonwealth of Pennsylvania, under date of April 29, 1874. It has been held that where a corporation has received the benefit <of a contract which has been fully executed by the party with whom it has dealt, it cannot in an action against it for performance upon its part, raise the question of its power to make it. (Whitney Arms Co. v. Barlow, 63 N. Y. 70; 27 Am. & Eng. Ency. of Law, 360 and cases cited.) This ground of defense is not, we think, .available to the defendant here. Nor did defendant refuse to pay on that ground.

The main question relates to the effect to be given to the by-law passed in March, 1893. This was passed as a substitute for the by-law under, which the policy to plaintiff was issued, and it operated to change the definite and absolute contract of defendant to pay in case the plaintiff was alive and in good standing at the end ■of eleven years, into a contract to pay only in case plaintiff was ■totally disabled physically, and then only one-tenth thereof annually. .It was essentially a new contract, and one upon which the plaintiff .might never receive anything. The defendant claims that this ■ change though radical is binding on .the plaintiff, because in his .•application he agreed to accept the certificatesubject to such laws, :rules and regulations as now exist, or may hereafter be adopted by .•and governing said corporation.” There is no finding that plaintiff ■ assented to, the change, other than as force may be given to the above clause of the application.

A power reserved to make by-laws means a power to make reasonable by-laws. (Kent v. Quicksilver Mining Co.. 78 N. Y. 159, 183; Angell & Ames on Corp. § 347.) This principle applies to associations like the defendant. (Bacon on Ben. Soc. & Life Ins. [2d ed.] § 85.) What by-laws are to be deemed reasonable depends on the objects and purposes of the society. In The People v. Medical Society (24 Barb. 570, 575) it is said the by-law must be reasonable and adapted to the purposes of the corporation. It must be consistent with its charter. (Bacon on Ben. Soc. & Life Ins. [2d ed.] § 83.) Here the object and purpose of the corporation, as appears from the finding of facts above quoted, was among other things to do a life insurance business upon the assessment plan and give certificates payable in manner and form as that given to plaintiff. The by-law in question strikes down these certificates and to that extent changes the objects and purposes of the corporation. The right of plaintiff to payment upon the contingency named in the certificate was in the nature of a vested right. (Goodman. v. Jedidjah Lodge, 67 Md. 117, 127; Bacon on Ben. Soc., etc., § 289 ; 1 Morawetz on Corp. § 496.) The plaintiff had the right to believe that the defendant would not by the adoption of a new by-law assume to change as to him the objects and purposes of the corporation, upon the basis of which he had made his contract and for ten years and upwards had performed upon his part. As to the plaintiff, the new by-law was simply a repudiation of a positive contract.

We are referred by the ajipellant to the case of Hutchinson v. Supreme Tent., etc. (68 Hun, 355). In that case the question of the reasonableness of the by-law was not considered, and was not involved, as without it the plaintiff was held not to be entitled to recover at all.

In the present case the court below held that the by-law in question, “ so far as the contract between the parties to this action is concerned, is an unreasonable by-law, as its effect is to infringe upon and impair the plaintiff’s contract already given and rights already secured, and as to this plaintiff and his contract with defendant is illegal and void.”

We are of the opinion that the trial court did not err in so holding. There is no other question that need be considered.

Hardin, P. L, and Parker, J., concurred.

Judgment affirmed, with costs.


text:
    William Miller, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.

      Negligence — fires from sparlcs.

    In an action brought to recover damages resulting from a fire communicated to-the lands of the plaintiff by the alleged negligence of the defendant, a railroad company, the evidence tended to show that the fire in some way, not explained, communicated to the plaintiff’s lands from an engine or train of the defendant.
    The negligence charged in the complaint was that such engine was so improperly constructed as to allow sparks and coals of unusual size to he emitted therefrom, and that fires had resulted therefrom upon two occasions. There was no fire upon the adjacent land of the railroad, and upon the second occasion there was no wind.
    The court chai-ged the jury that there was no evidence in the case that the engine was not perfect in all its parts, hut left it to them to say whether the defendant-was negligent in cleaning the fire pan of the engine at the times in question, and whether or not that negligence caused the fires.

      Held, that a verdict in favor of the plaintiff could not he sustained.
    Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court, in favor of the plaintiff, entered in the office of the clerk of the-county of Onondaga on the 20th day of May, 1895, upon the verdict of a jury rendered after a trial at the Onondaga Circuit, and also from a.n order entered in said clerk’s office on the 5th day of' July, 1895, denying the defendant’s motion for a new trial made-upon the minutes.

      Geomge Doheny, for the appellant.

      William Kennedy, for the respondent.
   Merwin, J.:

The plaintiff owned lands adjoining the track of the defendant in the town of Manlius. Hpon two occasions, one on or about J une 11,, 1891, and the other on or about July 21, 1893, his premises were injured by fire. There is evidence tending to show that the fire was in some way communicated to the land from an engine or train of the defendant as it passed along on either occasion. The defendant claims that no negligence on its part was shown causing the injury. Concededly it was incumbent upon the plaintiff to show sucli negligence.

The negligence charged in each count of the complaint is that the engine was so improperly constructed that sparks and coals of an unusual and extraordinary size and character were emitted therefrom which communicated fire to the plaintiff’s premises and caused the injury complained of. . .

The court, at the request of the defendant, charged the jury that there was no evidence in the case that the engine was not perfect in all its parts. The court, however, left it to the jury to say whether the defendant was negligent in cleaning its fire pan at the times in question, and whether or not that negligence caused the fires. There was no fire on the railroad land, and upon the second occasion, as the court charged, there was no wind. Upon the first occasion there was a strong wind, and it might be argued that as the fireman, as the plaintiff testifies,' poked or raked the fire, it was blown to some extent on the plaintiff’s premises. But on the second occasion, there being no wind and no evidence that anything the fireman did was not necessary to the proper running of the train, and no fire being left on the railroad land and thé engine being in perfect order, it is difficult to see on what basis negligence can be predicated.

Upon the theory the case was sent to the jury, the verdict must stand, if it stands at all, on the proposition that the fireman was negligent in his management of the fire, thereby throwing in some unexplained way coals from the fire pan to the plaintiff’s land. The evidence does not authorize the conclusion that the fire was caused in this way, at least so far as the second and main cause of action is concerned.

It may be, as alleged in the complaint, that sparks emitted from the engine were thrown upon the plaintiff’s premises and caused the fire. But if, as we must assume here, the engine was perfect, that would not of itself establish negligence. (McCaig v. Erie Railway Co., 8 Hun, 600; Frier v. D. & H. C. Co., 86 id. 464.)

We are referred by the plaintiff to cases where it is said that sparks or coals may be thrown of such unusual size as to indicate prima facie some defect in the engine. They do not apply here as this case was sent to the jury on the theory that the engine was perfect.

As the case stands there should, wo think, be a new trial.

ITardin, P. J., and Martin, J., concurred..

Judgment and order -reversed and a new ti-ial ordered, costs to abide the event.


author: Merwin, J. :

text:
    Lysander T. Millis, as Receiver, etc., Plaintiff, v. William J. Pentelow, Formerly Clerk of Oswego County, Respondent. W. H. Gardenier, Appellant.

      Attorney — application by, for leave to bring an action in the name of a receiver in supplementary proceedings — the attorney has no lien under Code of Civil Procedure, § 66 — General Pule No. 79.
    Upon an appeal from an order denying a motion made by an attorney for leave to bring an action, it appeared that the plaintiff had been appointed a receiver in proceedings supplementary to execution; that in the course of an action brought by the receiver, in regard to property claimed by him as receiver, the county clerk of Oswego county, as the attorney claimed, had been guilty of official misconduct in failing to furnish copies of papers which were or had been on file in his office, and that by reason of this the receiver, as the plaintiff’s attorney alleged, had been greatly damaged. Because of which misconduct the plaintiff’s attorney asked the court to order the receiver to bring a suit for this damage or to allow him (the attorney) to bring it in the name of the receiver, so far as to permit him to recover enough to repay him for his expenses in his unsuccessful efforts to compel the county clerk to furnish the required papers. Both the receiver and the judgment creditor in the supplementary proceedings were unwilling that such a suit should be brought.

      Held, that the motion was properly denied ;
    That as no action had been commenced, the attorney had no lien under section 66 of the Oode of Civil Procedure;
    'That if the application was to be regarded as one to permit an action to be brought by the receiver, a fatal objection existed in the fact that there had been no compliance with rule- 79 of the General Rules of Practice as adopted in 1888, which provided that leave to bring an action should not be granted a receiver in supplementary proceedings except upon the filing of the written request of the creditor in whose behalf he was appointed, or the giving of a bond with sufficient surety, to the person against whom the action was to be brought, conditioned for the payment of any costs which might be recovered ■against such receiver.

      Appeal by "W. II. Gardenier, attorney for the plaintiff in the above-entitled action, from an order of the Supreme Court, made at the Onondaga Special Term and entered in the office of the cleric of the county of Oswego on the 22d day of July, 1895, denying his motion, as stated in the notice of motion, for an “ order allowing the said action (as above entitled) to proceed, and the said summons and complaint, notwithstanding the countermand of the said plaintiff' (receiver) therein, at least to the extent of the attorney’s claims and charges for services growing thereout, and for the due prosecution thereof, by service thereof, as indicated by said verified complaint and the facts therein recited, and as an equitable assignee (to that extent) belonging to said attorney therein, and without prejudice to the rights of the said receiver or the beneficiaries he now represents, or to his final accounting as such officer of the court therein, or such further or different relief as the court may deem just and proper.”'
    It appeared that a summons and complaint, with the above title,, had been in fact prepared, and the complaint had been verified by the attorney, and the papers had been served on the defendant’s attorney with motion papers — all of which wras done apparently without the consent of Millis, the plaintiff named therein.

      W. 11. Gardenier in person, appellant.

      Merriek Btowell, for the respondent.
   Merwin, J. :

Mr. Millis was receiver in proceedings supplementary to execution.. Mr. Gardenier acted as his attorney in some litigation over property that he claimed as receiver, and in the course of that litigation the county clerk, as Mr. Gardenier claims, was guilty of official misconduct in failing to furnish copies of papers which were or had been on file in his office, by reason of which Millis in his official capacity, as Mr. Gardenier alleges, was greatly damaged. On the motion upon which the order appealed from was made, Mr. Gardenier sought to have the court order the receiver to bring suit for this-damage or allow Mr. Gardenier to bring it in the name of the receiver to the extent of permitting him, Gardenier, to recover, if he-could, sufficient to pay him the amount of his charges in his unsuccessful efforts to compel the county clerk to furnish the required papers. The receiver was not willing that the suit should be-brought, and any steps toward bringing it were not authorized by him. He opposed the motion made by the attorney, and insisted that there was no cause of action against the county clerk. The judgment creditor in the supplementary proceedings was also unwilling that the suit be brought.

If the application of the attorney be deemed a motion for leave to bring the action, it would be a fatal objection to the application that rule 79 of the General Rules of Practice was not complied with. The cause of action is alleged to have accrued to Millis as receiver.

The appellant claims he should have the right to enforce the ■claim against the county clerk in order to enable him to get pay for his services. Still there is evidence in the papers before the Special Term from which that court had a right to say that the ■attorney had no just claim against the receiver for services.

The attorney had no lien under section 66 of the Code of Civil Procedure, as no action had been commenced. We are referred to no authority which, under the circumstances here presented, would justify the court in directing the receiver to bring sirit, and we fail to find any good reason for disturbing the order.

Hardin, P. J., and Martin, J.,, concurred.

Order affirmed, with ten dollars costs and disbursements against Wilson H. Gardenier, the appellant.


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    The People of the State of New York ex rel. Bert Forbes, Appellant, v. John S. Markell, as Superintendent of the Onondaga County Penitentiary, Respondent.

      Police Court — a certificate of sentence under the Code of Criminal Procedure, §§ 721-725, is the only judgment of conmciion required —■ burden of proof.

    The only judgment contemplated by the Code of Criminal Procedure as necessary in a Police Court, is the certificate of the sentence pronounced, which the court is required to make and sign by section 721 of that Code.
    Imprisonment under such process, valid on its face, is prima facie legal, and the prisoner must assume the burden of impeaching its validity by showing a want of jurisdiction.
    Error, irregularity or want of form is no objection, nor is any defect, which may be amended or remedied by a further entry on motion.

      Appeal by the relator, Bert Forbes, from an order and judgment of the county judge of Onondaga county, entered in the office of the clerk of the county of Onondaga on the 22d day of April, 1895, dismissing a writ of habeas corpus and remanding the relator to the custody of the defendant, with notice of an intention to bring up for review on said appeal every question of law or fact arising upon the trial of the writ of habeas corpus.
    The relator was charged with resisting a police officer in violation of section 4, chapter 34 of the ordinances of the city of Syracuse, while the said officer, in the discharge of his duty, was arresting the relator for public intoxication and breach of the peace in a public place in the city of Syracuse.

      Hopkins do Bondy, for the appellant.

      George W. Stcmden, for the respondent.
   Merwin, J.:

In the petition made by Andrew Forbes on behalf of the relator for a writ of habeas corpus, it is alleged that he is held on a commitment issued by the police justice of the city of Syracuse, and that such commitment is illegal and void. There is no specification of any defect, except that it is dated March 15, 1885. A copy of the commitment is attached to the petition, and on its face it is quite apparent that the year of the date should be 1895, and that the defect was only clerical. No point is made as to this on this appeal, or that there is any other defect upon the face of the paper. Nor is it claimed that the Police Court did not have jurisdiction to try the relator and issue the commitment, or that the commitment is insufficient. Tlie main jioint seems to be that there was no proper judgment in the Police Court.

By section 721 of the Code of Criminal Procedure, which relates to proceedings in Courts of Special Sessions and Police Courts, it is provided that when a conviction is had upon a plea of guilty or upon a trial, the court must make and sign a certificate in substantially the form as there given. By section 725 it is provided that the judgment must be executed by the sheriff or other proper officer upon receiving a copy of such certificate certified by the court or the county clerk. The .commitment in the present case was a copy, certified as required by section 725, of a certificate substantially in tlie form as provided by section 721. Upon its face it was a judgment. By section 723 it is provided that within twenty days after the conviction, the court must cause the certificate provided by section 721 to be filed in the office of the clerk of the county, and by section 721 it is provided that the certificate so made and filed, or a certified copy thereof, is conclusive evidence of the facts stated therein. It is not claimed that this certificate was not properly filed. The presumption is that the court, in that regard, did its duty. Tlie burden of proof is on the relator. (Matter of Heyward, 1 Sandf. 701, 703; People v. Cavanagh, 2 Park. Cr. Rep. 650, 658.) In People ex rel. Slatzkata v. Baker (19 N. Y. St. Repr. 485) the certificate was held to be effectual though not filed.

In People ex rel. Catlin v. Neilson (16 Hun, 211) it was held that where a return to a writ of habeas corpus shows that the relator is held under a commitment issued by a Court of Special Sessions, after a trial and conviction by it, the only question presented is, whether or not such court had jurisdiction to try the relator and issue tlie commitment. “ Where the imprisonment is under actual process valid on its face, it will be deemed prima facie legal, and the prisoner must assume the burthen of impeaching its validity by showing a want of jurisdiction in the magistrate or court whence it emanated. If lie fail in thus impeaching it, his body is to be remanded to custody. Error, irregularity or want of form is no objection, nor is any defect which may be amended or remedied by a further entry on motion.” (3 Hill, 661, note 31, and cases cited.)

In People ex rel. Cook v. Smith (28 N. Y. St. Repr. 306, 308) the court, in speaking of the certificate under section 721, says: “ The statute does not require that any judgment should be entered in the minutes of the court. In short, there is but one mode of rendering judgment and that is by pronouncing sentence, and there is but one record of the judgment and that is the certificate of the sentence pronounced.”

The Police Court was not a court of record, and the provisions of section 721 et seq. were evidently intended to provide for the form and preservation of its judgments. It is reasonable to presume that tlie certificate set out in section 721 was designed to be the record of the conviction. If so, as the police justice had concededly jurisdiction of tlie person and subject-matter, tbe relator had no basis for relief on a writ of habeas corpus. ’The evidence, therefore, as to whether the record kept by the clerk of the police justice was insufficient or incomplete was not important. Nor is it material to inquire whether the police justice had a right, after the present proceedings were commenced, to correct the minutes of his clerk and make- them conform to his own. If the county judge erred in his rulings in regard to-evidence on these subjects (1 Crary Spec. Pro. [3d ed.] 387; Hurd on Habeas Corpus [2d ed.], 301) the relator was not prejudiced.

We find no good reason for disturbing the order appealed from, and it should, therefore, be affirmed.

Hardin, P. J., and Parker, J., concurred.

Order affirmed.


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    Juliaette L. Montgomery, Respondent, v. George H. Burgess, as Executor, etc., of Hiram Burgess, Deceased, Appellant.
    , Specific performance of an oral contract for the purchase of land — conveyance of the land subject to an outstanding mortgage — a grantee paying, stands as surety — stipulation to refer a disputed claim — approved by the surrogate of the wrong county — waiver of the irregularity.

    Upon an appeal from an order denying a motion to vacate an order of reference, entered in the office of the cleric of the county of Herkimer, it appeared that the plaintiff, having presented a claim against the estate of the defendant’s testator to the defendant, to whom letters testamentary had been issued in Otsego county, and the claim having been re j ected, a stipulation to refer was made, which was approved by the surrogate of Herkimer county, where the plaintiff resided, and the order in question was entered in that county. The case proceeded to trial without objection upon the part of the defendant, and not until the evidence was closed, and just before the final submission of the case, was the motion made to vacate the order of reference.

      Held, that the motion was made too late;
    That the defendant, by his conduct, had waived the alleged defect, consisting in the fact that the stipulation was approved by the surrogate of Herkimer county instead of by the surrogate of Otsego county.
    It further appeared that the subject-matter of the claim arose out of an agreement made between the plaintiff and the defendant’s testator, Hiram Burgess, father of the plaintiff, by which Burgess, in consideration of mutual love and affection, agreed to purcliase for tlie plaintiff certain lands, pay for and give the same to her as a home, and that, in consideration of these promises, the plaintiff agreed to move upon the premises, occupy them as a home and make certain repairs and improvements; that Burgess bought the premises, paid for them in part, but left upon them a purchase-money mortgage; that he paid the interest thereon up to within three or four years of his death, and paid some of the principal; that the plaintiff moved upon the premises and made certain repairs and improvements; that the assignee of the purchase-money mortgage foreclosed it after the death of Burgess, and that the executor of Burgess having refused to pay the debt, the plaintiff herself paid it and procured the judgment to be satisfied.

      Held, that the plaintiff, having performed in part, was entitled to -performance upon the part of Burgess or upon the part of his estate;
    That Burgess was bound in equity to convey the premises to the plaintiff free of incumbrances, and that the plaintiff, in paying the mortgage, occupied, as to Burgess, the position of a surety.
    Appeal by the defendant, George IT. Burgess, as executor, etc., -of ITiram Burgess, deceased, from a judgment of the Supreme Court iii favor of the plaintiff, entered in the office of the clerk of the •county of Herkimer on the 20th day of April, 1895, upon the report •of a referee, and also from an order made at the Onondaga Special 'Term and entered in the office of the clerk of the county of Herkimer on the 6th day of Ap’ril, 1895, denying the defendant’s motion to vacate and set aside au order of reference entered in the Herkimer county clerk’s office on August 16, 1893.
    This action was brought to establish a claim against the estate of Hiram Burgess, deceased.

      Oha/rles D. Thomas, for the appellant.

      Devendorf c& Smith and J. A. Steele, for the respondent.
   Merwin, J.:

The appeal from the order may be first considered. On the 20th of March, 1893, the plaintiff presented a claim against the estate of defendant’s testator to the defendant, to whom letters testamentary had been issued On December 24, 1889, by the Surrogate’s Court of Otsego county. The claim was rejected by the defendant, -and thereupon, under the provisions of section 2718 of the Code of Civil Procedure, a stipulation was made, and an order of reference was entered in Herkimer county pn August 16, 1893. The ground upon which it was sought to set. aside this order was that the approval of the stipulation was made by the surrogate of Herkimer •county, and not hv the surrogate of Otsego county.

The provision of the Code on this subject is as follows: “ If the •executor or administrator doubts the justice of any such claim, he may enter into an agreement in writing with the claimant to refer the matter in controversy to one or more disinterested persons, to be approved by the surrogate. On filing such agreement and approval in the office of {lie clerk of the Supreme Court in the county in which the parties or either of them reside, an order shall be entered by the clerk referring the matter in controversy to the person or persons so selected. On the entry of such order the proceeding shall become an action in the Supreme Court. The same proceedings shall be had in all respects, the referees shall have the .same powers, be entitled to the same compensation, and subject to ■the same control as if the reference had 'been made in an action in which such court might, by law, direct a reference.”

The stipulation, which was signed by'the parties, is dated June 24, 1893, and states that, “upon the approval of the surrogate of Herkimer county ” the matter be referred to the referee named “ to bear, try and determine the same according to the statute in such case made and provided.” The plaintiff lived in Herkimer county.. After the order of reference was entered, and on November 3,1893, the defendant’s attorney signed and delivered to the plaintiff’s attorneys a stipulation entitled in the action stating “ that the trial of this action be and the same is set down to be had before the Hon. Watson T. Dunmore, the referee heretofore duly chosen and .appointed herein, at the law office of C. D. Thomas, in the village óf West Winfield, on Friday, the 10th day of November, 1893, at 10 o’clock in the forenoon of that day.” The trial did not occur ■on the day named, and thereafter, on the eleventh of November, the referee, at the request of the defendant’s attorney, designated and .appointed in writing thel3tli of December,. 1893, as the time and the office of Mr. Thomas, the attorney, as the place for the trial of the action. This designation was, on or about November 11, 1893, served by the defendant’s attorney on the plaintiff’s attorneys, together with the notice of hearing. On the 13th of December, .1893, at the place named, the case was brought to a hearing before the referee, the defendant and his attorney being present, and several hearings were thereafter had in the usual way, evidence being given on both sides and defendant being sworn as a witness in his own behalf. Several stipulations were signed by the defendant’s attorney as such with reference to the time or place of particular hearings. The evidence was closed on the 31st of January, 1895, and by agreement of counsel briefs on each side were to be prepared and submitted on or before the 1st of March, 1895, which was accordingly done. Thereafter and before the referee made his report the motion to vacate 'the order of reference was noticed and made.

Up to the time of the making of the motion no question appears to have been made about the validity of the order. It is suggested that on the motion for nonsuit made after the close of the plaintiffs evidence one ground taken was that the court was without jurisdiction. No basis for this ground was stated and no intimation that the order of reference was invalid.

It may be assumed that the approval should have been made by the surrogate of Otsego county, and the question is whether the defendant is now in a position to raise the question. He waited until after the trial and submission of the case. He at the start assented to the approval by the surrogate of Herkimer county. He appeared in person and by attorney, and there is no suggestion that he has not had a fair trial before a competent referee. If the trial is a nullity there is danger, as the plaintiff showed on the hearing of the motion, that the plaintiff may lose her claim by reason of the short Statute of Limitations.

By the Code as it now stands the proceeding becomes, upon the entry of the order of reference, an action in the Supreme Court. In effect, a short method is provided for the commencement of an action in the Supreme Court and for obtaining an immediate reference. In case of an action sought to be commenced in the ordinary way, if the defendant appears and answers, consents to a reference and proceeds to trial, it will be too late for him then to say that he was not properly served with process, or that the action was not properly commenced. There is no good reason why the same rule should not apply to an action sought to be instituted as in the present case. There was in substance an appearance, such as was adapted to the case, in person and by attorney, and the court, as there constituted, was called upon by the defendant to act. The defendant had the right, if he so chose, to appear in the action and so waive defects in the service of process or he could consent to an arbitration. (Wood v. Tunnicliff, 74 N. Y. 43.)

In Bucklin v. Chapin (53 Barb. 488, 492), in a case relating to references of this kind, it is said : “ The Supreme Court has jurisdiction over the claims which were submitted to the referees; in other words, it has jurisdiction of the subject-matter. By the voluntary consent and appearance of the parties, jurisdiction of their persons was obtained; and when jurisdiction over both is acquired, the proceedings thereafter are valid, however irregular they may be.” In Everts v. Everts (62 Barb. 577) it was held that voluntary appearance in the Surrogate’s Court gave the surrogate jurisdiction to act in a case where he had jurisdiction of the subject-matter. Ordinarily parties who go to trial before a referee are estopped from denying the validity of the order of reference. (Bell v. Vernooy, 18 Hun, 127.)

We are of the opinion that the motion to vacate the order of reference came too late; that the defendant, by his conduct, has waived any defect in that regard; that the court had jurisdiction of the parties and the subject-matter, and had power to give judgment in the action.

Coming to the appeal from the judgment, it is found by the referee:

Evrst. That in the spring.of 1880, plaintiff and Hiram Burgess, the defendant’s testator, entered into an agreement whereby said Hiram Burgess, in consideration of mutual love and affection, agreed to purchase for the plaintiff, who was his daughter, about eight acres of land, with the buildings thereon, known-as the ‘Spencer place,’ situated in the town of Winfield, Herkimer Co., N. Y., and pay for the same, and give the same to plaintiff for a home for said plaintiff, and in consideration thereof plaintiff ag2-eed to move upon said pmnises and .occupy said premises as a home, and agreed to make certain repairs to said premises and cei’tain improvements thereon.

Second. That thereafter, and on or 'about Apiil 1st, 1880, said Hiram Burgess did purchase said premises from Herbert J. Spencer for the sum of $2,000, took a deed thereof in his own name, paid $200 thereon and executed and delivered to said Herbert J. Spencer a mortgage upon the same for the sum of eighteen hundred dollars, the balance of the purchase price.

Third. That at the time said premises were purchased, as aforesaid, the buildings and fences were greatly out of repair.

Fourth. That at about the time said premises were purchased by said Hiram Burgess, as aforesaid, the plaintiff moved upon said premises, repaired the buildings and fences, made substantial improvements thereon, and since that time has and now does occupy the same as a home.

Fifth. That said Hiram Burgess paid the interest on said mortgage till the spring of 1886, and at that time had paid eight hundred dollars on the principal, and thereby reduced the principal to the sum of one thousand dollars, and that said Hiram Burgess made no payments on said mortgage thereafter, except as stated in the fifteenth finding herein.

Sixth. That on or about the 13th day of March, 1886, said Hiram Burgess conveyed said premises to this plaintiff by a deed which contained the following covenant: ‘And the said party of the first part does hereby covenant and agree to and with the. said party of the second part, her heirs and assigns, that the premises thus conveyed in the quiet and peaceable possession of the said party of the second part, her heirs and assigns, he will forever warrant and defend against any person whomsoever lawfully claiming the same, or any part thereof,’ and said deed contained no reference to said mortgage.”

It was also found that Burgess died in November, 1889, leaving a will that was proved December 24,1889; and letters were issued to the defendant; that the mortgage referred to was in July, 1883, assigned by the mortgagee to Eli S. B. Spencer, who died in February, 1892, leaving a will, which was duly proved, and-letters issued to the executrix, Amia ~W. Spencer; that in August, 1892, said executrix commenced in the Supreme Court an action to foreclose the mortgage, making as parties defendant the executor of Burgess, the plaintiff, her husband and others, and a judgment of foreclosure was entered September 10,1892, under which the property was advertised for sale; that before the judgment the plaintiff requested the executor of Burgess to pay the mortgage, which he did not do, and on the 26th of October, 1892, tlie plaintiff paid in satisfaction of the mortgage and judgment the sum of $1,172.13.

It was also found that on the 29th of March, 1887, Hiram Burgess borrowed of Harry Thomas the sum of sixty dollars for the purpose of paying, and which was applied in paying, one year’s interest on the mortgage, and Burgess gave for such loan the promissory note of the plaintiff and himself, which was payable on March 1, 1888, with interest; that tlm indebtedness represented by the note was the debt of Burgess, and that plaintiff signed it, relying on his promise to pay the same ; that he did not pay it, and on 26th of October, 1892, the plaintiff paid thereon the sum of seventy dollars and thirty cents, and became the owner and holder of the note as against the estate of Burgess.

The referee decided that the plaintiff could recover the two sums of $1,172.13 and $70.30, with interest, and ordered judgment accordingly. The claim presented and referred covered those items.

We are of the opinion that the evidence was sufficient to sustain the findings of fact made by the referee. The agreement between plaintiff and Hiram Burgess in the spring of 1880 was a verbal one, but there was such a part performance on the part of plaintiff that she would have been entitled to specific performance from Burgess within the authority of oases that have established the law on the subject. (Lobdell v. Lobdell, 36 N. Y. 327; Parsell v. Stryker, 41 id. 480; Freeman v. Freeman, 43 id. 34.) In the Parsell case the owner of a farm agreed to devise it to the plaintiff free of incumbrance. He did not do this, but conveyed it before his death, taking back a mortgage for the purchase money, which he assigned to other parties. The grantee had notice of plaintiff’s Tights. It was held that the' grantee was bound to convey to plaintiff, and that the mortgage was ineffectual as against plaintiff’s rights.

The plaintiff having a right to specific performance, the main question here is whether by taking the deed given to her by Burgess on March 13, 1886, she is precluded from asserting any remedy outside of the deed. It is not found that the deed was accepted in full performance of the prior agreement. There is evidence that Burgess soon after the deed was given recognized his obligation to pay the mortgage, and told plaintiff that he would do so. The deed is not made subject to the mortgage, and the evidence authorizes the assumption that Burgess then expected to pay it, and that the deed was given in part performance only of the original agreement by Burgess. Burgess, for a consideration furnished by the plaintiff, and which under the authorities must be deemed adequate, agreed to purchase and pay for a certain piece of property and deed it, or cause it to be deeded, to plaintiff. Tie purchased it and subsequently deeded it, but did not fully pay for it. In the absence of an intent to relieve Burgess from full performance, it should not be held that the agreement to pay for the property merged in the deed, but it should be held that it survived as a part of the original transaction.

If before the deed was given the plaintiff had sued for specific performance, she could without doubt, having established her right to a specific performance, have compelled a conveyance to her, and also required Burgess to relieve the property of the mortgage or pay the equivalent as matter of damages. That is what is accomplished by the result in this action. (See Hawkins v. Mosher, 13 Hun, 563.)

The debt which plaintiff paid to the holder of the mortgage was, as the evidence authorizes us to assume, the debt of Burgess, and the plaintiff was in the position of a surety. Having been obliged for her own protection to pay the debt, she should have the remedy of a surety against the principal debtor.

Ve have examined the numerous cases cited by the learned counsel for the appellant, but find nothing that requires us to reach a different conclusion. It is suggested that the Statute of Limitations may be a defense. But that question was not raised at the trial, and we are referred to no case that holds that such a defense can, in a case like this, be raised for the first time on appeal. It does not, we think, avail here.

Hardin, P. J., and Martin, J., concurred.

Judgment and order affirmed, with costs.