text:
    JOHN B. KAYE, Respondent, v. THE ROB ROY HOSIERY COMPANY, Appellant.

      Facts showing that an employer had furnished an elevator, reasonably safe and suitable, to his employee injured by its fall.

    Upon the trial of an action, brought by an employee of the defendant to recover damages, alleged to have been received through the fall of an elevator in the defendant’s factory, it was proved that the elevator moved in a well which had four solid brick walls, in two opposite corners of which were upright posts reaching from the top to the bottom, along each of which an iron rail was fastened, the rails forming the tracks or guides of the elevator and having teeth or sockets into which an automatic safety-clutch attached to the car could spring. The elevator was lifted and lowered by means of a cable which was attached to its top, and extended thence from a pulley to the top of the well, thence horizontally to another pulley, thence down to the third floor, where it was attached to a drum which, being revolved by an engine, wound up the cable and lifted the elevator, or unwound it and let the elevator descend by gravity.
    On the morning of the day on which the accident occurred, while the plaintiff was descending in the elevator, the car suddenly fell to the bottom of the well, and the safety-clutch, 'which was devised to keep the car from falling in case of any failure of the cable to hold it, did not, upon that occasion, work. Ho other negligence was proved than that which was chargeable to the defendant for the selection and use of a car with such appliances.
    It was shown, by uncontradicted evidence, that the elevator was of a plan and style approved by long and ample use in many other manufacturing and business buildings in various parts of the country; that its selection was carefully considered by the defendant, and made because of its high reputation for excellence and safety, and that it was placed in the building by manufacturers of large experience and high reputation; that it was manufactured of the best material and in the best style of workmanship, and that previous to the accident it had been in daily and constant' successful operation, without accident or any interruption which would reasonably cause apprehension of any imperfection in device or safeguards against accident.

      Held, that the defendant, as the employer of the plaintiff, had discharged the duty incumbent upon it to furnish a machine reasonably safe and suitable, such as is ordinarily used in the business, and .which was in good repair, and that he was not liable to the plaintiff for the injuries sustained by him in this case.

      Hickey v. Taaffe (105 N. Y., 26); Burke v. Witherbee (98 id., 562); Marsh v. Chickering (101 id., 396); Stringham v. Stuart (MS.) followed.
    Appeal from a judgment in favor of the plaintiff, entered upon a verdict rendered at the Rensselaer Circuit, which was entered in the office of the clerk of the county of Rensselaer on the 9tli day of March, 1888, for the sum of $3,305.44; and also from an order, entered in the said clerk’s office on March 14, 1888, denying a motion made by the defendant to set aside the verdict made upon the minutes of the justice before whom the action was tried.
    The action was brought to recover damages alleged to have been received by the plaintiff by the fall of an elevator in the defendant’s factory. The plaintiff was in the employ of the defendant as operator of the elevator. His duty required him to ascend and descend with it. While thus engaged on the 10th- of March,. 1884, the elevator fell a distance of about twenty-seven feet to the bottom of its well in the cellar, carrying the plaintiff with it and causing him the injuries of which he complained in this action. The charge of negligence sought to be sustained upon the trial was that the elevator was of defective device in its appliances for safety. The elevator moved in a well, reaching from the top of the building, which was four stories in height, to the bottom of the cellar. This well had four solid brick walls, in two opposite corners of which were upright posts reaching from top to bottom, along each of which an iron rail was fastened; the rails forming the tracks or guides of the elevator, and having teeth or sockets, into which an automatic safety clutch attached to the ear could spring. The elevator was entered upon each floor through openings for doors. Automatic doors were so contrived that they raised or fell as the elevator approached or passed the floors, leaving the well-opening closed on each floor, except when the elevator filled that part of the opening. The elevator was lifted and lowered by means of a cable, which was attached to its top and extended thence over a pulley at the top of the well; thence horizontally to another pulley; then down to the third floor, where it was attached to a drum, which, being revolved by an engine, wound up the cable and lifted the elevator, or unwound it and let it descend by gravity. Other appliances to regulate its movements existed, but need not be described. The plaintiff could, by means of what is called the shipper, control the upward and downward movement of the elevator and stop it, as he needed. He did. not have any control of the engine, but could reverse or suspend the operation of the elevator machinery. As he was descending in the elevator upon the morning of the accident, the automatic door on the second floor had not moved sufficiently outside of the car-space of the elevator, and the bottom of the car struck it and - the car was stopped. The plaintiff then caused the car to move upward to the floor above, and then resumed his descent. He had been told by the machinist in charge that this was the' proper course to take, if such an event occurred. While thus descending, the car suddenly fell to the bottom of the well. The safety clutch was devised to keep the car from falling:, in case of any failure of the cable to hold it. It did not work upon this occasion. Ho other negligence was proved than that which was imputable from the selection and use of a car with such appliances. The cause of the fall of the elevator did not clearly ajipear from the evidence. Other facts are stated in the opinion.

      Henry A. King, for the appellant.

      Rufus M. Townsend and Charles E. Patterson, for the respondent.
   Landon, J.:

The jury have, in substance, found that the elevator car fell, because the- end of the cable by which it was raised and lowered became unfastened upon the revolving drum upon which the cable was coiled and uncoiled in order to move the car up and down, thereby leaving the car without support; and also because the automatic safety-clutch on the sides of the car — a sort of dog and ratchet device—failed upon this occasion to work and hold the car, as it was expected to do, in case the cable became- unfastened or slack. The verdict also condemns the method of fastening the end of the cable to the drum as unsafe, and the safety-clutch as unreliable as a safeguard against possible failures in the cable; and convicts the defendant of negligence in using the elevator thus devised and constructed.

We do not think the verdict should be upheld. The evidence is abundant and uncontradicted that the elevator was of a plan and style approved by long and ample use in many other manufactuiing and business buildings in various parts of the land; that its selection was carefully considered by the defendant and made, because of its high reputation for excellence and safety; that it was made and placed in operating condition in its building by manufacturers of large experience and high reputation in that respect; that it was, in fact, manufactured of the best materials and in the best style of workmanship and for a first-class price; that previous to the accident it had been daily in constant successful operation without accident or any interruption which would reasonably cause apprehension of any imperfection in device or safeguards against accident; that immediately after this accident its safe working was resumed without necessity for alteration or repair. Under the authorities the defendant, as the employer of the plaintiff, discharged the duty incumbent upon it to furnish a machine reasonably safe and suitable, such as is ordinarily used in the business and wdiich is in good repair. (Hickey v. Taaffe, 105 N. Y., 26; Burke v. Witherbee, 98 id., 562; Marsh v. Chickering, 101 id., 396; Stringham v. Stuart, not yet reported.) The plaintiff lays stress upon the fact that the end of the cable upon the revolving drum was not so attached as to be absolutely fastened, but was purposely so attached as to be self detached in certain conditions of the appliances, and that this removable or loosening device was an apparent defect.

It is difficult, without the aid of a diagram or model, to explain the method and working of this attachment. There was a fork-shaped fixture like the letter IT at .the end of the drum; into this the end of the cable was placed, a knot being in the extreme end of the cable so that the tension upon the cable would draw the knot against the sides of the fork and hold the cable firmly in it, so long as the tension existed and the elevator worked in the usual way. The cable extended from the top of the elevator car to the top of the well, thence over a pulley and then down through the floors to the dram. This forked attachment upon the drum was so devised that in case control of the elevator should be lost, the end of the cable would in certain conditions automatically fall out of the fork, the cable would be loosened and the car would not be pulled through the roof or crushed against it at the top of the well, as would happen unless the cable should be unloosened. This method of attachment and detachment was regarded, by the manufacturer and users of this elevator, as one of its most valuable features. In case the cable should become loose or break or slacken, then the safety-clutch in the sides of the car, which was so contrived as to be held back from the teeth or sockets in the two upright iron rails or tracks which extended from the top to the bottom of the well, would then be released and would spring out and enter these sockets and hold the car and keep it from falling. This safety-clutch was in like manner approved by its successful operation and in the judgment of users and manufacturer. The testimony, on the part of the plaintiff, showed that in some other styles of elevators the cable was clamped fast to the drum, and opinions were given that this was the safer way. But these witnesses did not take into account the danger of pulling the elevator up over the pulley at the top of the well in case of any accidental loss of control over the upward movement of the elevator. The defendant in selecting this elevator endeavored to obtain one which had proper and efficient safeguards against its being carried too high and against its falling. The opinions of fault finders after the accident, as to the merits of the two systems of cable attachment, in no way disprove that abundant care was used by the defendant before the accident. There was much discussion upon the argument as to the probable cause of this accident. The jury evidently attributed it mainly to the slipping of the cable out of its fork attachment. We are unable to say, from the evidence, that the jury were wrong. If they were right, then the reason why the safety-clutches did not work must have been because they were out of order. But they do not appear to have been found out of order. It is not needful to discuss the question. For the reason that the defendant was not shown to have failed to use all the care his duty required, the motion for a nonsuit should have been granted.

The judgment should be reversed, the motion for a new trial granted, costs to abide the event.

Learned, P. J., and Ingalls, J., concurred.

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


source: Caselaw Access Project

author: Ingalls, J.: Learned, P. J.:

license: Public Domain

text:
    ALEXANDER CHACE, Respondent, v. JAMES M. LAMPHERE, Appellant.

      Land covered by each of two devises in a will — rule by which the intention of the testator is to be discovered■—competency of oral statements made by him.

    A testator by» his will gave to one Lamphere a farm on which he resided in the town of Austerlitz, Columbia county, known as the “Home Farm,” and to one Chace another farm in the same town called the “ Wooley Farm. ” In an action of ejectment, brought by the devisee Chace to recover possession of about twenty acres of land which had at one time constituted a part of the Wooley farm, and had thereafter, and prior to the death of the testator, been, by the construction of a fence, included in the farm which the testator had by his will devised to Lamphere, the trial court held that as, by the terms of the will, the devise to each of the devisees included in its description this parcel of land in dispute, that the rule that the later clause must prevail over the earlier one in the construction of a will should be applied, and that the land in dispute should be adjudged to be included in the piece of land last devised by the will.

      Held, that this rule is not favored by the courts, and should be resorted to only in an extreme case.
    That, in this case, the fact that the will referred to the respective pieces of property devised as the piece “on which said Lamphere now resides,” and “on which farm said Ohace now resides,” when considered in connection with parol evidence offered as to statements made by the testator prior to his death, in respect to the separation of the piece of land in dispute from the Wooley farm, was sufficient to justify the court in determining under the evidence upon a construction of the will, which would give to one or the other of the parties to this action this piece of land.

      That parol evidence, as to the declarations of the testator in regard to the separation of this piece of land from the Wooley farm, was competent, not for the purpose of determining or defining what the intentions of the testator were, but with the view of showing the condition of the farms, and the relations which the premises in dispute bore to the other lands, and the manner in which the testator had arranged and occupied the same.

      Mann v. The Executor's of Mann (1 Johns. Ch., 281); Reynolds v. Robinson (82 N. Y., 103) followed.
    Appeal by the defendant from a judgment rendered at the Columbia County Circuit, upon the verdict of a jury directed by the court in favor of the plaintiff, in an action brought to recover the possession in fee of certain premises described in the complaint in this action, and for $180 rental value for their use and occupation, and entered in the office of the cleric of the county of Columbia on June 30, 1888.

      R. E. Andrews, for the appellant.

      A. F. B. Chace, for the respondent.
   Ingalls, J.:

This is an action of ejectment brought by the plaintiff to recover possession of a parcel of land of about twenty acres, and resulted in a verdict, directed by the court, in favor of the plaintiff that he recover the possession in fee of the premises, with $180 for the use and occupation, and judgment was entered upon such verdict, and the defendant appeals therefrom to this court. The plaintiff and defendant were nephews of Smith Shaw, who in the year 1871, and thereafter to his decease, was the owner of two farms, one known as the Wooley farm, which was conveyed by Samuel Wooley and wife to Sherman Griswold May 1, 1825. The same premises were conveyed by Sherman Griswold and wife to Smith Shaw May 1, 1833. The other farm was one upon which Smith Shaw resided many years previous to and at the time of his death, and was' known as the Smith Shaw farm or Home farm. The farms were adjacent, and constituted one tract of land, and were used for farming purposes but cultivated as separate farms. In 1871, by some arrangement between the said Smith Shaw and the plaintiff, the latter went into the occupancy of the farm known as the Wooley farm, and continued there until the death of his uncle, Smith Shaw. The same year, the defendant Lamphere, at the solicitation of Smith Shaw, went to reside upon the Home farm with his uncle, and cultivated that farm under an arrangement entered into between' Smith Shaw and the defendant, the terms of which are not material, The defendant continued there until the death of Smith Shaw, and is still in the occupancy of the farm. The parcel of land in controversy is situated upon the west side of the Wooley farm, so called, and is adjacent to the Home farm, so designated. And it is conceded that such parcel of land was purchased by Smith Shaw as a part of the Wooley farm, and was conveyed to him by Sherman Griswold and wife, by the deed before mentioned. The parcel of land in controversy was known as the swamp or pasture lot. Soon after the defendant Lamphere went to live upon the Home farm, Smith Shaw directed the construction of a fence upon the east line of the parcel of land in dispute, which was built by Lamphere, by which that lot became included in the Home farm, and was ever after used as a part thereof. Upon the trial a witness by the name of Anna Ferguson was allowed to state a conversation between herself and Smith Shaw, which occurred in 1873, as follows :

“ Q. Did you have an interview when he spoke of having taken a lot off of the Wooley farm and putting it on his own farm, and if so, when was it ? [Objected to as illegal, immaterial and improper. Objection overruled.] A. He told Mr. Lamphere that if he would move down from his place, take care of him and his sister, and do as he said, he would take that swamp lot off of the upper place and put it on the lower place, as that needed it, and as the upper place did not need it, as it had plenty, and had more land than could be used. He says: ‘How I have the lots between the two farms as I want them and where I want them, for I have them fixed.’ He says: ‘ I have done ; now I have my mind convinced where I want them, and as I want them, between the farms; ’ that he said not five weeks before his death. Q. He said that also five weeks before his death? A. Yes, sir, the same thing.” Another witness, William W. Stillman, whose deposition was allowed "to be read as evidence, and contained the following, which was received under the objection of plaintiff’s counsel: “ Q. In 1875 did you have any talk with Smith Shaw in regard to his having taken a piece of land from one of his farms, and if so, when and where was it, and what was that conversar tion? [Objected to as immaterial, illegal, improper and hearsay. Objection overruled.] A. I did; it was, I think, in haying time in fall of the year, and we were on the piece of land he was talking about; he says, this is the piece of land I told you about that I took off of the Wooley farm and put it on the old farm; he said he had promised to give it to James Lamphere if he would come down and live with him; that he had established the line where the fence now was, and it was up by the barn; I asked him whose barn it was, and he said it was his, but he had given Chace the use of it; he said the old farm had no early feed and the Wooley farm had two or three pieces of early feed, and after he took this off, that left two pieces of early feed on the Wooley farm, and that was enough for that; I brought Smith Shaw to Chatham to William Daley’s to get his will drawn, and had talk with him there; that was in 1875. Q. Relate the conversation? [Objected to as illegal, irrelevant, immaterial and hearsay. Objection overruled.] A. He said he was going to make his will, and he was going to will his, sister Happy all that Lamphere occupied, during her life, and then he was going to give it to James Lamphere, and to give all the personal property on that place to Happy, and seven hundred dollars to Sam Holdridge; he was going to give the Wooley farm that Chace occupied to him and all the personal property that was on it; then he was going to put in his will that Chace should pay to Happy fifty dollars a year out of what he had, and his executors should get a monument for him with four hundred dollars, James Lamphere to pay two hundred, and Chace two hundred for the monument, and the bequest to be paid by them equally; I had some conversation with him about his last will; he told me how he had fixed it.” On being cross-examined by plaintiff’s counsel, he continued: I moved to Spencertown the-1st day of April, 1873; I keep public house and sometimes work at mending harness; have kept public house there ever since I have lived there, except two or three years I let it out; the time I brought him to Chatham was not the last time he made a will; he made a' will that day, and afterwards made another.” Redirect. “ Q. This lot that you were on when you and Smith Shaw were talking in 1875, was it called the swamp lot ? A. It was.”

This evidence was, doubtless, admitted by the trial court, not for the purpose of adding anything to the will of Smith Shaw, but for the purpose of ascertaining the situation of the farms, and particularly in regard to the parcel in controversy, and to show how the same had been used, and for what purpose, with the view to aid in the construction which should be given to the will of Smith Shaw in regard to the premises in dispute, as a question of grave difficulty had arisen in reference to the interpretation which the will should receive, as to which of the parties to the action the swamp lot in dispute had been devised, owing to the indefinite and imperfect description of the farms devised by the will, to the parties, respectively. Both parties derive their title under the will of Smith Shaw, and the only controversy between them is in regard to the ownership of the swamp or pasture lot. The two clauses of the will by which the farms are devised to the parties, respectively, are the following:

“Sixth. I give, devise and bequeath to James M. Lamphere, his heirs and assigns forever, all my said farm situated in the town of Austerlitz, Columbia county, 1ST. Y., and containing about one hundred and forty acres of land, with the appurtenances thereunto belonging, being the farm on which said Lamphere now resides, to have and to hold the same to said Lamphere, his heirs and assigns forever, subject, however, to the life estate of my said sister, Happy Shaw, therein and to the payment of the several sums and legacies hereinbefore charged against the same.

Seventh. I give, devise and bequeath to Alexander Chace, his heirs and assigns forever, all my said farm, situated in the town of Austerliz, Columbia county, FT. Y., and containing about one hundred and seventy-four and three-quarters acres of land, called the ‘ Wooley Farm,’ which I purchased of Sherman Griswold, and on which farm said Chace now resides, together with the personal property now on said farm, to have and to hold the same to said Chace, his heirs and assigns forever, subject, however, to the payment of the annuity of fifty dollars each year to my said sister, Happy Shaw, with which said farm is hereinbefore charged and is hereby charged; and, also, subject to the payment of the several sums and legacies hereinbefore charged against said farm.”

At the close of the evidence, and after hearing counsel, the learned justice stated, among other things, the following: “We have, then, two clauses in this will which, in my opinion, are inconsistent and irreconcilable. By the sixth, in unambiguous language, he devises the premises in question to James M. 'Lampliere; by the seventh, in language equally as definite, he devises the premises to Alexander Chace. If it were possible to reconcile these two clauses, the court should do so, and should look at the whole scope and intention of the will for that purpose. It was with that view that I admitted the testimony yesterday of the declaration of the testator, in respect to the severance of this piece of land from the Wooley farm, reserving any expression of opinion of the effect of that testimony upon the main question to be considered. If these two clauses were not free from ambiguity, I think that the testimony would aid somewhat in reconciling [the inconsistency, and enable us to determine the intention of the testator, but it can have no force whatever, in my opinion, except where there is an ambiguity of language. This, then, seems to me to be a case for the application of a rule where the will contains two clauses, which, upon any rational interpretation,- are irreconcilable and inconsistent, the latter clause must prevail over the former as expressing the last intent of the testator. I am aware that rule is not applied where it is possible to reasonably reconcile the 'two clauses, but it seems to me that here they are utterly irreconcilable. By the one he clearly devises this piece of land to the defendant, by the other to the plaintiff. I am, therefore, of the opinion that the latter clause in the will must prevail, and that the plaintiff, Alexander Chace, is entitled to the possession of the so-called pasture lot described in the complaint, and grant the plaintiff’s motion, in that respect, and deny the motion for the defendant.” We feel constrained to differ with the learned justice who tried the cause at the circuit, in regard to the necessity of resorting to the rule which he adopted in deciding the cause, by holding that the two clauses of the will were wholly irreconéilable, and that there was no ambiguity in the language employed in framing such clauses, and that, consequently, the parol evidence which had been received could not be considered in aid of the construction of the will. And as a necessary result that the seventh clause must be adopted as the last testamentary expression of the testator, and as conclusive in regard to the devise of the premises in controversy to the plaintiff. The rule thus invoked is not favored and is not to be resorted to save in an extreme case, and after every other rule of construction has failed, and then only to prevent the failure of both provisions of the will for uncertainty. (Covenhoven v. Shuler, 2 Paige Ch., 123, 129 ; Parks v. Parks, 9 id., 109.) At page 124 the chancellor remarks: “ I admit this rule is not ‘founded upon a very satisfactory reason, and is only to be adopted from the necessity of the case.” (Ogsbury v. Ogsbury, 45 Hun, 388.) In the case last cited Justice Follett remarks, at page. 389: “ But the rule referred to, which Sir Geobge Jessel, master of the rolls, so aptly described in Bywater v. Clarke (18 Ch. Div., 19, 20) as ‘ the rule of thumb,’ is not to be blindly followed unless the court can find nothing else to aid it to ascertain the intent of the testator.”

In referring to the sixth clause of the will we perceive that the testator, in describing the farm devised to Lamphere, employs this language: All my farm, being the farm on which said Lamphere now resides.” Turning to the seventh clause we find, as a part of the description, the following: “ And on which farm said Chace now resides.” By the second clause of the will the testator creates a life estate for the benefit of his sister, Happy Shaw, as follows: Second. I give, devise and. bequeath a life estate in the farm of land occupied by James M. Lamphere; and I further give my sister fifty dollars each year during her natural life, to be and is hereby made a charge against and to be paid from the farm occupied by said Chace. In the third term of the will the same expression is used: “ From the farm occupied by said Lamphere.” Likewise m the fourth item: “ From the farm occupied by said Chace.” And a charge was created upon such farm to secure the }3ayment of the legacy. In the fifth item the testator provided for the erection of a monument, and charges the expense thereof equally against the two farms, using this language: The expense of which is made a charge equally against my two said farms occupied by said Lamphere and said Chace, and to be paid from each said farm, two hundred dollars from each.” In the sixth and seventh items of the will the term employed is “ on which said Lamphere now resides,” “ on which farm said Chace now resides.” The words “ resides ” and “ occupied” are obviously to be understood as having been used by the testator in the same sense and as having the same signification. We are of opinion that the evidence of the witness Ferguson and that of Stillman could have been properly considered by the trial court in aid of the construction of the will. Not for the purpose of determining or defining what the intention of the testator was, but with the view of showing the condition of the farms and the relation which the premises in dispute bore to the other lands and the manner the testator had arranged and occupied the same. Such evidence could only serve a purpose in aiding the court to understand the surroundings and thereby, in all probability, be better prepared to rightly interpret and understand the expressions employed by the testator in framing the will, and, consequently, be greatly aided thereby in determining what the intention of the testator was in regard to the disposition, by his will, of the premises in question. Whether he intended that such premises should be included in the devise of the farm to Lamphere by the sixth item of the will or to Chace by the seventh item of the will under the description therein contained. Such evidence was not intended, nor could it be received, to enlarge or contradict the terms of the will or to show what was the intention of the testator, but for the purpose only which has been stated. The leading case, perhaps, upon this subject, and which is frequently cited, is Mann v. The Executors of Mann (1 Johns. Ch., 231). Chancellor Kent, at page 234, remarks: “ Parol evidence cannot be admitted to supply or contradict, enlarge or vary, the words of a will, nor to explain the intention of the testator, except in two specified cases: 1. Where there is a latent ambiguity, arising dehors the will, as to the person or subject meant to be described,” etc. Reynolds v. Robinson (82 N. Y., 103) is to the same effect. We think the evidence was admissible within the principle declared by the cases referred to. There exists, we think, in this case, a latent ambiguity in regard to the subject meant to be described by the testator in his will, in the particular before stated, and that, in aid of the proper construction of the will, the evidence was admissible. Considering the provisions of the will, and the seeming difficulty which attends its proper construction, and regarding all the circumstances in reference to the condition of the' property sought to be devised, and the relation of the parties thereto, we have reached the conclusion that the trial court was not justified in the determination that the case was brought within the principle which he invoked as the basis of his decision, and which we deem inapplicable to this case. We are persuaded that the case can be decided upon the ascertained intention of the testator, as deduced from the provisions of the entire will, construed in the light of the facts and circumstances proper to be considered in connection with such instrument. We perceive that the counsel for the defendant requested that the cause should be submitted to the jury. We do not deem it necessary or advisable to express any opinion upon that question, but prefer to leave it to the discretion of the trial court, and we abstain from declaring what construction the will should receive in regard to the intention of the testator in disposing of the premises in question.

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

Landon, J., concurred;

Learned, P. J.:

I concur, except that I doubt whether that part of Stillman’s evidence was proper in which he speaks of testator’s intentions as to his wilL This part does not appear to have been specifically objected to.

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


author: Landon, J.:

text:
    FREDERICK S. V. MALONE, by GEORGE P. MALONE, as Guardian, Appellant, v. THE BOSTON AND ALBANY RAILROAD COMPANY, Respondent.

      Action to recover for injuries sustained by a child in a smtch-ya/i'd belonging to a railway company — the company is not bound to apprehend that the child would be there unatienckd.

    In an action to recover for injuries to the plaintiff, alleged to have been caused by the defendant’s negligence, it was proved on the trial that on the 25th day of June, 1885, the plaintiff, a child of three years and ten months old, had his foot crushed by the wheel of a freight car on the defendant’s side track in its switch-yard in the city of Hudson. The plaintiff was first observed with his right foot lying upon the outside rail of the most southerly track of six switch-tracks, which, in addition to two main tracks, composed what is called the defendant’s yards. His body was lying southerly of the track and outside of it; his foot had been crushed. The defendant had just previously deposited nine freight cars upon the track, “kicking” them there from the east and off the main track. The most westerly wheel of the most westerly of the freight cars was stained with blood, and an examination of the track disclosed blood stains and crushed flesh upon the rails for two car lengths easterly of where the blood-stained wheel came to a rest. A brakeman, who had stood at a brake upon the westerly end of this westerly car until it came to a rest, or very nearly so, did not see the child upon the track, or know of its injury until told of it on his next trip. Several children, the plaintiff’s sister among them, were playing in the bushes on the south side of the switch-tracks, and just down the embankment from the place where the plaintiff was found. Neither his sister nor any of her companions had observed the presence of the plaintiff among them, and it was not clearly shown that he had joined them before he received his injury.

      Held, that the evidence failed to show any negligence on the part of the defendant, as the place where the accident occurred was the private land of the defendant, and the defendant was lawfully engaged in its proper business upon its own property and had no reason to apprehend that such a child would come unattended upon its tracks in the immediate front of a slowly-moving freight car.
    That, even if the negligence of the defendant were conceded, it would still remain an open question whether the child received its injury in consequence of it, or by reason of the child having, in order to obtain a ride got hold of an iron rod suspended beneath the side of the car, or because of his having been struck by the foremost end of the defendant’s car in attempting to cross the track in front of the backing car; and the plaintiff must fail if it was just as probable upon the evidence that the damages were occasioned by the one cause as the other.

      Searles v. Manhattan Railway Company (101 N. Y., 661) followed.
    Appeal from a judgment in favor of the plaintiff, entered in the office of the clerk of Columbia county on June 25, 1888, upon a verdict recovered at the Columbia Circuit, and from an order made on April 12, 1888, denying the defendant’s motion for a new trial and to set aside the verdict upon the minutes of the justice before whom the action was tried.
    The plaintiff, a child three years and ten months old, on the 25th day of June, 1885, had his foot crushed by the wheel of a freight car on defendant’s side track in its switch yard, about 1200 feet beyond its upper station in the city of Hudson. The defendant, by means of an engine, “ kicked ” nine freight cars from its main track westerly upon this side track, and left them standing there. As they were slowly moving to a rest, the plaintiff, unobserved by any one, in some way had his right foot run over by the forward wheel of the forward car (that is, the car farthest from the engine). A brakeman was upon that end of that car, and remained there until the car was about stopping, when he jumped off on the south side, crawled under this or one of the other cars, and got on the engine, which, after kicking the freight cars, moved along the main track and stopped opposite the place where the freight cars stopped. The brakeman did not observe the child. When the child was first observed by any one, it was lying with its crushed foot on the track and its body extending southerly on the south side of the switch track. Several children, the plaintiff’s sister among them, were playing in the bushes on the south side of the switch tracks and just down the embankment from the place where the plaintiff was found.
    Other facts are stated in the opinion.

      John Cadman, for the appellant.

      R. E. Andrews and L. F. longley, for the respondent.
   Landon, J.:

Just how the plaintiff was injured cannot be ascertained from the evidence. He was a child three years and ten months old; had escaped from his mother’s house and care and had evidently followed his elder sister and her playmates across and along the defendant’s tracks about 500 feet to the place where he was injured.

Neither his sister nor her companions observed his presence among them, and it is not quite clear that he had joined them before he received his injury. The plaintiff was first observed with his right foot lying upon the outside rail of the most southerly track of six switch tracks, which, in addition to two main tracks, compose what is called the defendant’s yard; his body was lying southerly of the track and outside of it. His foot had been crushed. The defendant had just previously deposited nine freight cars upon the track, “ kicking ” them there from the east and off the main track. The most westerly wheel of the most westerly of the freight ears was stained with blood, and an examination of the track disclosed blood stains and crushed flesh upon the rail for two car lengths easterly of where the blood-stained wheel came to a rest. A brakeman had stood at the brake upon the westerly end of this westerly car until it came to a rest, or very nearly so, and he did not see the child upon the track, nor know of its injury until told of it on his next trip.

The plaintiff’s sister and her companions stepped down the embankment into some bushes as the cars went by. The brakeman saw them, and he testified that he saw the plaintiff with them as the cars went easterly on the main track past the switch, which opened after the cars had passed it, and back over which they passed westerly upon the side track upon which they were left; but no one saw the child on the track. Possibly the plaintiff was attempting to cross the track in front of the backing car and was not seen by the brakeman. Possibly the brakeman jumped off the car as it slowly drew to a stop and before it had actually stopped, and that the child then came upon the track and was hurt. Possibly, also^ the child caught hold of an iron rod which ran under the side of the body of the freight car and tried to catch a ride.

Suppose the negligence of the defendant be conceded. It would still remain an open question whether the child received its injury in consequence of it. If the child caught hold of the iron rod suspended beneath the side of the car, it is conceivable that its foot projected beneath the wheel; its hands would then relax their grasp, and its body would fall outside of the tracks. If the child had been struck by • the foremost end of the advancing car, the child might have fallen into the same position. The jury had simply the position in which the child lay, and a description of the locality and movement of the cars, and the fact that the accident was not witnessed by any one from which to draw their inferences. It is conceded that it is the province of the jury to draw the proper inference, provided the evidence is such as tends to support the inference drawn. In Seairles v. Manhattan Railway Company (101 N. Y., 661), it was held that where the damages were occasioned by one of two causes, the defendant being responsible for one, but not for the other, the plaintiff must fail if it was just as probable upon the evidence that the damages were occasioned by the one cause as the other. That case had been tried before a jury. The General Term, which has power to weigh the evidence and to set aside a verdict because against the clear weight of the evidence, affirmed the judgment ; and yet the Court of Appeals, which has no power to weigh the evidence upon which the jury render a verdict, set aside the verdict because there was no evidence to support it. That is to say, the probabilities arising upon the evidence being balanced, there is no' preponderance in favor of the plaintiff; and he, therefore, fails in the judgment of the lawj notwithstanding the jury have drawn their inference in his favor. It might captiously be said that, unless the evidence is weighed, the fact -that it is balanced cannot be ascertained. However this may be with the Court of Appeals, the (Jen eral Term meets with no such embarrassment. We think that, in this casCj conjecture has been too freely used to supply the defects in the testimony.

We are also of opinion that the evidence failed to show any negligence on the part of the defendant. The place where the accident occurred was the private land of the defendant. It is true foot travelers were in the habit of walking up and down along the tracks, and children were in the habit of going across them and along them for the purpose of amusement. All this was known to the defendant, but there was no particular place for crossing, certainly none where the plaintiff was injured. This license, if it was such, must be considered in connection with the usual slow movements of cars in a switch yard. A person, sui juris, could keep out of their way if reasonably careful. The cases applicable to crossings and thoroughfares upon the private lands of a railroad company and with its implied license, have no application beyond their reaffinnance of the general proposition that care should always be exercised with a vigilance proportioned to the danger reasonably to be apprehended. To permit the jury to hold that the defendant could not “kick” a car a few yards upon its switch tracks, used for the storage and making up of trains, without' first ringing the bell or giving some signal of approach, or stationing a flagman or brakeman so as to give warning to people wandering there, would be unreasonable. Besides, how can a person non sui juris be warned ? The defendant was lawfully engaged in its proper business upon its own property. It had no reason to apprehend that such a child would come unattended upon its tracks in the immediate front of a slowly moving freight car. (Chrystal v. Troy & Boston R. R. Co., 105 N. Y., 164.) There was no apparent reason why it should not move its cars just as it did. The care it exercised was reasonable, tested by the rule that it must be exercised with a vigilance proportioiied to the danger reasonably to bo apprehended. The motion for a nonsuit should have been granted.

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

Inoalls, J., concurrred; Learned, P. J., taking no part.

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


author: Ingalls, J.: Landon, J.:

text:
    ADELBERT G. RICHMOND, Appellant, v. JOHN L. DIEFENDORF, Respondent.

      A purchaser of a note, for half its face value, must show that he came honestly by it, when the maker proves that he was induced to sign it by fraud.

    In an action brought by the plaintiff to recover upon a promissory note made by the defendant, John F. Diefendorf, to the order of and indorsed by R. T. Van Valkenburg' or hearer for $3,000, which was dated December 15, 1886, and made payable at Spraker’s National Bank, Canajoharie, N. Y., the plaintiff claimed to have purchased the note of one H. D. Henderson before maturity and to have paid therefor fifty cents on the dollar, and that such purchase was made by him at the National Bank of Canajoharie, of which bank he was the cashier. Upon the trial he testified that he purchased another note of the same amount and paid to Henderson $3,000 for the two notes by drafts on Albany, which had been paid; that at the time he bought'the notes he had no knowledge or information of any kind as to the consideration of the notes or wliat they were given for; had no knowledge or information• that the notes were given for a patent-right or had anything to do with a patent-right; had no knowledge what- . ever that it was claimed that these notes were obtained by fraud, or that there was any defense claimed to the notes or either of them; had known Diefendorf twelve or fifteen years prior to that transaction; knew the fact that he was a farmer, and reputed to bo the owner of a farm in Canajoharie, and believed him to be responsible; that he knew that other notes of the same maker to the amount of $8,000 were outstanding, $4,000 of which were held by the bank, of which the plaintiff was cashier; that he made no inquiry as to Henderson's business.

      Held, that the plaintiff established a case at the trial which entitled him to recover upon the note, as a bona fide holder thereof for value.

      Vosburgh v. Diefendorf (16 N. Y. State Rep., 493) distinguished.
    Appeal from a judgment recovered at the Montgomery Circuit Court, which was entered iu the office of the clerk of the county of Montgomery on June 18, 1888, and also from an order made in the said action and entered in the said Montgomery county clerk’s office on June 14, 1888, denying the plaintiff’s motion made upon the minutes of the justice presiding at the trial to set aside the verdict and for a new trial.

      Matthew Hale, for the appellant.

      Z. S. Westbrook, for the respondent.
   Ingalls, J.:

This action was brought by the plaintiff to recover upon a pro missory note of which the following is a copy:

“ Gtouverkeur, N. Y., December 15, 1886.
“ $2,000.
Thirty days after date I promise to pay R. T. Van Valkenburgh, or bearer, two thousand dollars at Spraker’s National Bank, Canajoharie, N. Y., value received, with interest at the rate of six per cent per annum.
“JOHN F. DIEFENDOBF.”

The plaintiff claims to have purchased the note of H. D. Henderson, before maturity, and to have paid therefor fifty cents on the dollar, and that such purchase was made by him at the National Bank of Canajoharie. That the only persons who were present at such purchase were the plaintiff, Howard Vosburgh, and H. E. Henderson the person of whom the purchase was made. The plaintiff was examined as a witness in his own behalf and testified upon his direct examination as follows :

Am the plaintiff; reside in Canajoharie, and am the cashier of the Canajoharie National Bank ; know the defendant. [Plaintiff’s Exhibit A shown witness.] Have seen that note before; first saw that note December 1Y, 1886; it was at the office of the Canajoharie National Bank; it was brought there by Mr. IT. D. Henderson; there was another note of the same amount brought there at the same time; I purchased those two notes; paid him $2,000 for the two notes by draft on Albany; have the drafts I paid him at that time in my possession.

Witness produced four drafts of $500 each drawn by the Canajoharie National Bank on the First National Bank of Albany, dated December 17, 1886, payable to the order of IT. D. Henderson, indorsed by IT. D. Henderson, and also by other banks; they are returned canceled. The four drafts were received in fevidence and marked plaintiff’s Exhibits IT to K, inclusive.

$500. “ Canajohabie National Bank, 1
“Canajohabie, N. Y., December 17, 1886. )
“ Pay to the order of H. D. Henderson, five hundred dollars.
“ To Fiest National Bank, Albany, N. Y.
“ A. C. RICHMOND, Cashier..”

The other drafts, Exhibits I to 1C, inclusive, are the same amount, same date, and all drawn on the First National Bank of Albany, N. Y.

At the time I bought those notes I had no knowledge or information of any kind as to the consideration of the notes or what they were given for; had no knowledge or information that the notes were given for a patent-right or had anything to do with a patent-right; had no knowledge or information whatever that it was claimed that the notes were obtained by fraud, or that there was any defense claimed to the notes, or either of them; had known Diefendorf twelve to fifteen years prior to that transaction; knew the fact that he was a farmer, and reputed to be the owner of a farm in this county, and believed him to be responsible.

The plaintiff, upon his cross-examination, stated, among other things, that he borrowed of the bank the money with which he purchased the two notes; that he was, at the time, the cashier of the bank, and was also a stockholder and director thereof ; that he had been acquainted with the defendant about fifteen years, and that defendant owned a farm, and he supposed him to be responsible; that he had a conversation with Vosburgh the morning of the day the notes were purchased, and before he saw Henderson; that he met Vosburgh in the street, and he informed the witness that the notes could be purchased, and at what price. Plaintiff further testified that he made no inquiry in regard to Henderson’s business, nor as to the notes, nor in regard to the business relations between Henderson and Diefendorf. According to the plaintiff’s evidence he purchased the note in question without any information as to what it was given for, and without any knowledge that fraud was connected with the execution of the note. The plaintiff was not impeached, or even contradicted by any witness in regard to the facts to which he testified. The evidence, at most, only tended to cast suspicion over the transaction. The real question is whether the evidence justified the jury in discrediting the testimony of the plaintiff in regard fco his good faith in purchasing the note, for if the plaintiff’s version of the transaction had not been rejected by the jury, no such verdict could have been rendered by them. The circumstances which tended to create such suspicion in regard to thQ-bonafides of the transaction, at most, called upon the plaintiff to explain his purchase of the note,- and he accepted the requirement; and if his statement in regard to such purchase is to be believed, and we perceive ho reason why it should not be, the plaintiff must be regarded as a bona fide purchaser of the note for value. (Kelly v. Burroughs, 102 N. Y., 93 ; .Dalrymple v. Hillenbrand, 62 id., 5 ; Chapman v. Rose, 56 id., 131; Story on Bills of Exchange [3d ed.], § 188 ; Hart v. Potter, 4 Duer, 458.) The case of Vosburgh v. Diefendorf (decided by this court, and reported in 16 N. Y. State Rep., 493) is not, we think, in conflict with the view thus taken. In that case Vosburgh, the plaintiff, was not examined as a witness, and consequently made no explanation in regard to the good faith of his purchase, and the jury were left to infer, from the evidence adduced, whether or not he purchased the note in good faith and without notice of the fraud connected with its execution by the defendant. The court held that the circumstances of that case were such as to call for explanation. (Seymour v. McKinstry, 106 N. Y., 240.) It would seem that the plaintiff Vosburgh was the only person who could satisfactorily make such explanation, and he omitted to go upon the stand as a witness and state the facts in regard to his purchase of the note,, and what knowledge he had acquired, if any, in regard to the consideration of the note and the circumstances which attended its execution. In that case Justice Landon, at page 496, remarks: “ The fact that the plaintiff paid value for the note, only 'maintains one part of the burden the law casts upon him, the remaining part, his good faith, is not established by proof that lie-paid value, certainly not by proof that he paid half value. We must not confound this case in which the defendant by his evidence, if the jury should believe it, has cast the burden of proving good faith upon the holder of the note, with cases in which the burden rests upon the defendant to impeach such good faith.” In the case at bar the plaintiff accepted the burden, and as a witness explained the transaction in regard to the purchase of the note in suit, and testified to his good faith in making such purchase. The missing link in Vosburgh v. Diefendorf, seems to have been fully supplied in this case by the testimony of the plaintiff. We are persuaded that the plaintiff established a case at the trial which entitled him to recover upon the note as a bona fide holder thereof for value. Doubtless the jury concluded that the defendant had fallen into the hands of sharpers and had-been swindled by them, and upon evidence which was sufficient barely to create a suspicion in regard to the good faith of the plaintiff’s purchase, virtually disregarded the plaintiff’s evidence in their zeal to protect the defendant and rendered the verdict which they did. We are convinced that the judgment cannot be sustained without establishing a precedent which will impair confidence in commercial paper which should be protected.

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

Learned, P. J., and Landon, J., concurred.

Landon, J.:

This case is suostantially the same upon the facts as the ease of Vosburgh v. Diefendorf (16 N. Y. St. Rep., 493), except with respect to the testimony affecting the good faith of the plaintiff in the purchase of the note. He bought it before maturity for onelialf its face value. The jury have found, upon evidence sufficient to uphold the finding, that the note was procured from the maker by the fraud of the payee, and was sold to the plaintiff by one Henderson, who was cognizant of the fraud. In the Vosburgh ease, Vosburgh, the plaintiff, offered no testimony touching his own good faith in the purchase of the note then in suit; that note was made at the same time as this note, and as a part of the same fraud practiced upon the defendant. The present plaintiff was his intermediary in the' purchase of the note, and we held that Vosburgh could not establish his own good faith by showing that the agent whom he procured to purchase the note did so in good faith; for he might have interposed him to protect himself. Richmond, who was the agent in that case, is the plaintiff in this. His testimony is to the effect that he had no knowledge or information respecting the consideration of the note, or that there was any claim by the maker that the note was procured by fraud, or that any claim of defense existed respecting it. He was cross-examined at great length, and we do not discover that any evidence was elicited, or fact shown, tending to impeach his statement. Ho other testimony is adduced tending to show that any fact was brought to his knowledge which would naturally give him any intimation of the fraud practiced by the payee of the note upon the defendant. It is true that he is interested; that he paid half value; that he knew that eight other notes of the same maker, to the amount of $8,000, were outstanding, $4,000 of which were held by the bank of which the plaintiff was cashier; that he knew little of Henderson, the holder of the note in suit; did not know where he lived, what his business was, or his character. The plaintiff asked nothing about the consideration of the notes. There is not any ground' to suppose that he knew any fact which he did not disclose. Ho suggestion is made of any such knowledge. It is true that the fact that so many of the defendant’s notes were outstanding and offered for sale by a stranger was unusual. Did that circumstance imply that the defendant had been the victim of a fraud ? Why should it ? The law does not presume fraud. The circumstances possibly implied an unusual expansion of his credit; but when a person gives a series of notes, the presumption naturally is that he does so in order to benefit himself, not that he has been victimized by swindlers. The law exacts from the plaintiff good faith; that is, if he has notice of the fraud practiced upon the defendant, he shall not volunteer his aid in making the fraud successful, and thereby become particeps oriminis. It is reasonable that he who has the fruits of fraud or crime in his hands, even though they be mercantile paper, should show that he came honestly by them. His honesty or good faith is shown when the evidence excludes the inference of his dishonesty. He may be negligent, he may be suspicious; but the law does not exact active vigilance with respect to facts extrinsic of the paper. It simply requires that he shall have no notice, actual or constructive, of the fraud, and he is not bound to 'institute inquiry unless he is advised of some fact, as distinguished from a mere surmise of a fact, tending to impair the character of the paper. (Chapman v. Rose, 56 N. Y., 137; Welch v. Sage, 47 id., 143; Seybel v. National Currency Bank, 54 id., 288.)

If the plaintiff had paid full value for the note, in the usual course of business before maturity, that alone would be prima facie proof of his good faith. (Dalrymple v. Hillenbrand, 62 N. Y., 5 ; Cowing v. Altman, 71 id., 435.) When he pays half value or substantially less than its face value, clearly the transaction implies some defect. It may impeach the responsibility or integrity of the maker of the paper, or it may impeach the genuineness of the paper itself. Clearly the plaintiff should explain what occasions this large disparity between the nominal value and the actual price. (Huff v. Wagner, 63 Barb., 215, 235.) Here he made the explanation, to the effect that the fact that the defendant had issued so many notes, some of which the plaintiff’s bank had purchased, led him to desire 'to get this one which first fell due, and to try to purchase it at a reduced rate. Nothing was disclosed or shown touching the fraud practiced upon the defendant, and as the case stood the plaintiff was shown to be a bona fide holder of the note to the amount of his payment for it. He was entitled to have the verdict directed for that amount. (Moore v. Ryder, 65 N. Y., 438.)

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

Learned, P. J., concurred.

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


author: Dykman, J.:

text:
    LUDLOW W. VALENTINE, an Infant by GEORGE W. BERGEN, His Guardian Ad Litem, Respondent, v. ELIZABETH H. LUNT, Appellant, Impleaded with HERMANN T. RICHARDT and SUSAN A. AUSTIN.

      Demurrer to one of several defenses—■ invalidity of a deed from a person of unsound mind—rights of purchasers from the grantee named in sueh deed.

    A complaint alleged that one Catharine A. Valentine was seized of certain land; that she employed the defendant Ricliardt as her physician; that he entered into illicit relations with her and obtained complete control and mastery over her mind and property; that, on or about June 7, 1886, Mrs. Valentine, being of unsound mind and incompetent to manage herself or her affairs in consequence of the influence exercised over her by Richard!., he took advantage thereof and obtained from her a conveyance to himself of certain premises without paying any consideration therefor, although the conveyance recited a consideration of $15,000, which the premises were then and are now fairly worth.
    It further alleged that by a deed, dated October 37, 18:6, Ricliardt conveyed the premises to the defendant Austin for the sum of $13,000, who paid $3,000 in cash and gave him a mortgage on the premises for $10,000, which mortgage was paid off and discharged; that the defendant Austin, by an instrument dated October 1, 1887, mortgaged the premises to the defendant Elizabeth H. Lunt, to secure the payment of $9,000 advanced by her to the defendant Austin, and demanded that the conveyances of June seventh and October twenty-seventh, and the mortgage of October first, should be declared void, and that these instruments be delivered up and canceled.
    The defendant Lunt interposed an answer containing two defenses, the second of which set up a claim of the defendant Austin that she was the owner of the premises when she executed the mortgage, and her possession under the deed from Richardt, and that the mortgage was taken by the defendant Lunt, relying upon the apparent ownership of the defendant Austin, and that by reason thereof she loaned to Austin the sum of $9,000 and took a mortgage upon the premises as security for the payment thereof.
    Upon the hearing of a demurrer interposed to this second defense:

      Held, that, as this defense made no denial of any of the allegations of the complaint, the complaint stood admitted, for all the purposes of the demurrer, precisely as if this was the sole and only defense set up by the answer.
    That as the defendant did not purchase of Mrs. Valentine, who received no consideration from her immediate grantee, the defendant must claim through Richardt, who could convey no better title than he himself had.
    That a consenting mind was an essential requisite to the validity of every deed; and if one of the parties to an instrument be destitute of understanding or deprived of volition the deed is void no matter what appearance or complexion and ceremony of execution the instrument may have stamped upon it.
    That the legislature of this State has reinforced the common law in that respect and interposed a statutory interdiction against the alienation of lands by persons of unsound mind. (1 R. S., 719, § 10.)
    That as the defense, challenged by the demurrer, admitted the unsoundness of mind of Mrs. Valentine, it thereby conceded that the person who executed the deed was destitute of legal capacity and that the deed was invalid.
    Appeal by the defendant Elizabeth H. Lunt from an interlocutory judgment of the Supreme Court, entered in the office of the clerk of Bangs county on October 19,1888, and from an order made at a Special Term held in the city of' Brooklyn on October 5, 1888, sustaining the plaintiff’s demurrer to the defendant’s second defense.

      William C. Beecher, for the appellant.

      Horace Secor, Jr., for the respondent.
   Dykman, J.:

The plaintiff in this action is an infant and the only child and heir-at-law of Catharine A. Valentine, deceased, who died intestate on the 9th day of January, 1888.

The plaintiff alleges the seizin in fee of Catharine A. Valentine of the premises described in the complaint, and sets up the employment of the defendant Bichardt as her physician, and then charges upon him illicit relations with her socially after the commencement of his. professional visits, and the obtainment of complete control and mastery over her mind and property. It then alleges that, on or about June 7, 1886, Mrs. Valentine being of unsound mind and incompetent to manage herself or her affairs, in consequence of the influence exerted over her by Richardt, he took advantage thereof and obtained from her a conveyance to him of the premises in question, without paying any consideration therefor, although the conveyance recites a consideration of $15,000, which the premises were and are fairly worth.

It further alleges that, by deed bearing date October 27, 1886, Richardt conveyed the premises to the defendant Austin for the sum of $12,000. That she paid $2,000 in cash and gave him a mortgage on the premises for $10,000, which mortgage was paid off and discharged, and that the defendant Austin, by an instrument dated October 1, 1887, mortgaged the premises to the defendant Elizabéth TI. Lunt, to secure the payment of $9,000 advanced by her to the defendant Austin; also, that Mrs. Valentine continued to reside on the premises until after the sale thereof to the defendant Austin, when she moved to the city of New York, Richardt, also, at the same time moving from Brooklyn to a place near her in the city of New York.

The plaintiff then demands judgment which shall declare void the conveyance of June 7, 1886, to the defendant Richardt, together with the conveyance of October 27, 1886, to the defendant Austin, and the mortgage of October 1, 1887, to the defendant Lunt, and that all these instruments be delivered up and canceled, and for such further judgment or relief as may be just.

The defendant Lunt, in her answer, first makes some admissions and some denials of knowledge sufficient to form a belief, and makes a general denial of every allegation not specifically admitted. Then, for a further and separate defense to the complaint, she sets up the claim of the defendant Austin to be the owner of the premises on the 3d day of October, 1887, when her mortgage was given and her possession under the deed from Richardt, and alleges her reliance upon the apparent ownership of the defendant Austin, and that by reason thereof she loaned to her the sum of $9,000, and took a bond and mortgage upon the premises as security for the payment thereof. She then alleges that she had no notice or knowledge of the mental condition of Mrs. Valentine, or the undue influence exerted over her by the defendant Richardt, and that she acted throughout in good faith. We assume that the answer of the defendant Austin was similar, but no copy of that pleading is printed in the appeal book.

The plaintiff demurred to the second separate defense in those answers, on the ground that it was insufficient in law.upon the face of the answer. The demurrer was sustained, and an interlocutory judgment was entered thereon, from which the defendant Lunt has appealed. As the defense to which the demurrer was interposed makes no denial of any of the allegations of the plaintiff, the.complaint stands admitted, for all purposes of the demurrer, precisely as if it was the sole and only defense set up by the answer; and the defendants Austin and Lunt rely solely upon their position of bona fide purchasers and mortgagees, respectively, which they are assumed to be for the purposes of our decision. But they did not purchase of Mrs. Valentine, and she received no consideration from her immediate grantee. They claim through Bichardt, and he could convey no better title than he himself had.

Under the demurrer of the defendants, we assume the perpetration of a great wrong upon Mrs. Valentine by the defendant Bichardt. With full knowledge of her want of mental capacity and her incompetence to manage herself or her affairs, as a result of liis nefarious influence over her, he obtained from her a deed of her property without paying any consideration therefor. Such a transaction is destitute of all the elements which impart valid or binding force to contracts or conveyances. The contribution of a consenting mind is an essential requisite to the validity of every deed; and if one of the parties to an instrument be destitute of understanding or deprived of volition, no matter what appearance or complexion and ceremony, of execution the instrument may have stamped upon it, it is void and of no effect. It is a nullity from the beginning, because it has no mutuality of consent. It is not the result of the meeting of two minds. The law is well settled on that subject, and judges and elementary writers have employed plain and forcible language in setting it down;

Story, in his work on Equity Jurisprudence (§ 222), says: “ The general theory of the law in regard to acts done and contracts made by parties, affecting their rights and interests, is that in all such cases there must be a free and full consent to bind the parties. Consent is an act of reason and _ accompanied, with deliberation; the mind weighing, as in a balance, the good and evil on each side. And, therefore, it has been well remarked * "x" * that every true consent supposes three things: first, a physical power; secondly, a moral power; and, thirdly, a serious and free use of them. * "x" * And hence it is, that if consent is obtained by * * * undue influence, it is to be treated as a delusion, and not as a deliberate and free act of the mind.”

In the case of Riggs v. The American Tract Society (84 N. Y., 336), Judge Dánfortii, in the course of his opinion, says, substantially, that a gift or contract is invalid unless the mind goes with the act, and where the actor is without mind or of unsound mind, or of a mind not 'possessed of itself as under duress.

In the case of Van Deusen v. Sweet (51 N. Y., 382), the trial court charged the jury, among other things, that if they found the grantor’s mind did not assent either to the execution or delivery of the deed, then they might find that the deed was a nullity, adding that it was necessary that the mind of the grantor should assent to the act, not only that his hand should sign, and he in some manner should deliver the deed, but that his mind should assent to it, and the charge was held to be correct and not erroneous.

In the case of Barry v. The Equitable Life Assurance Society (59 N. Y., 592), Judge Folger, delivering the opinion, said: Where there exist coercion, threats, compulsion and undue influence there is no volition; there is no intention nor purpose, but to yield to moral pressure for relief from it; a case is presented more analogous to a parting with property by robbery. No title is made through a possession thus acquired.”

The foregoing extracts have been brought together to manifest the uniformity and harmony of judicial expression and decision upon the subject under dissension. We see thus how the principle involved in this action has been expounded by eminent jurists, and how all acts and deeds which are not the result of free agency are void, ab initño / they cannot be else. We may also take a closer view. • The defense challenged by the demurrer admits the unsoundness of mind of Mrs. Valentine, and such admission imports a total deprivation of senses. Such is the legal signification of the term “ unsound mind.” (Riggs v. Tract Society, 84 N. Y., 336 ; S. C., 95 id., 511.) The answer, therefore, concedes that the person who executed the same was destitute of legal capacity, and the invalidity of her deed results from such incapacity.

Our legislature has reinforced the common law in that respect, and interposed a statutory interdiction against the alienation of lands by persons of unsound mind. (1 R. S., 719, § 10.) Her deed was, therefore, in contravention of the statute and a nullity. The defendants seek to bring this case within a line of decisions holding the deeds and contracts of" persons of unsound mind voidable only, and not absolutely void; and such a doctrine has been inculcated in many cases in our courts; like the Mutual Life v. Hunt, (79 N. Y., 541.) But in all such cases an element of good faith has predominated, and the contracts have been beneficial to the lunatic or his estate, and entered into without notice of incapacity, and so far performed that the executing party cannot be placed in statu quo, if the transaction be rescinded. All these essential requisites are absent and wanting in this case, and it cannot be brought under the principles invoked.

There may be cases also where a bona, fide purchaser for value acquires a valid title to property which he bought from a person who procured it by fraud or false representations; but in all such cases a sale was made, induced by falsehood and fraud, it is true, but still made with intent to pass the title. In all such cases the seller voluntarily parted with the possession, and there was an uncontrolled volition to pass the title; such is not this case.

In no view do we see any escape for these two defendants who are without fault of their own, and the judgment should be affirmed, with costs.

Pbatt, J., concurred.

Judgment sustaining demurrer to second defense affirmed, with costs. '