author: Ward, J._:

text:
    Lewis W. Becker, Respondent, v. Alfred S. Warner, Appellant.

      Innkeeper — loss of a watch — contributory negligence of a guest — a watch is neither a “jewel ” nor an “ ornament” — it need not be deposited in á safe — tohen money must be so deposited.

    A watch is neither a “jewel” nor an “ornament”- within the meaning of the acts protecting innkeepers from liability to a guest for the loss of property, and need not be deposited in the safe which the statute provides is to be provided by an innkeeper; and the latter is liable for the loss thereof unless the negligence of the guest has contributed to it.

      It seems, that where a guest has money in his possession to the extent of fifty dollars he is required, under the statutes protecting innkeepers, to deposit it in the safe provided in the hotel, and that if he fails to do this he cannot recover for its loss.
    Upon the trial of an action brought against an hotel keeper to recover for the loss, of a watch and chain and fifty dollars in money, which had been stolen from the plaintiff while he was a guest in the hotel, it appeared that the plaintiff’s room was on the ground floor, with a window opening on a public street, the-bottom of the window being about three feet above the street. There was evidence tending to show that when the plaintiff retired he left the gas burning brightly ip. the room, the window unfastened, and that his vest containing his watch was hanging upon a peg and his trousers containing his money W'ere placed in a conspicuous position. There was also evidence tending to show that the plaintiff was more or less intoxicated at the time.

      B.eld, that the plaintiff, having failed to use ordinary care to protect himself and his property, was guilty of contributory negligence and could not recover.
    Appeal by the defendant, Alfred S. "Warner, from an order of" the Supreme Court, made at the Erie Circuit and entered in the office of the clerk of the county of Erie on the 3d day of January, 1895, setting aside the verdict of a jury in favor of the defendant and granting a new trial of the action.

      Jtoses Shire, for the appellant.

      Sttdson Ansley, for the respondent.
   Ward, J._:

On the 20th and 21st of July, 1893, the defendant was keeping-an hotel in Buffalo known as the Stafford House. At that time the plaintiff (respondent here) was a guest at the hotel. He was a merchant from the country, and was there in connection with his business. On the evening of the second day the plaintiff went out riding with some friends in the city, and remained out until about one o’clock. A bell boy in the hotel conducted the plaintiff to his room, which was on the ground floor of the building with a window opening on a public street, the bottom of the window being about three feet above the street. The plaintiff knew this fact. There were two clerks at the hotel and a bell boy, one clerk leaving and the other coming on at one o’clock. The clerk who left saw the plaintiff come in, and testified that he had known him for some time; that he - appeared as usual, but he thought he had been drinking. Albert -S. Rice, the clerk who came on at one o’clock, testified in substance that he gave the plaintiff the key to his room, to which he went, accompanied by the bell boy. At two o’clock the clerk sent a boy around the hotel to look after it. He came back and made a report to the clerk. Rice went and looked into the window of the plaintiff’s room and saw him lying on his bed in his underclothes, not under cover. The window, which was sufficient to admit a person, was open and the blinds were open. The gas in the room was burning brightly, so that practically everything ■could be seen therein. Rice then went inside to the door of the plaintiff’s room, and, after aloud knocking, aroused-the plaintiff, who let him in. The plaintiff appeared drowsy. His clothes were upon the floor. The plaintiff picked up his clothes, looked through them, said he had lost his watch and money. The clerk asked him if he had put down his window. He said he had not, but that the blinds were ■down. The bell boy was sworn, and he testified that at two o’clock he went around the house and found plaintiff’s window open. The gas was burning high and the blinds were open ; that plaintiff was lying on top of the bed in his underclothes; that he reported the matter to the clerk, and that they went to the door of plaintiff’s room, when they rapped three or four minutes on the door, and finally succeeded in waking the plaintiff up. The plaintiff asked him what his name was, and said that he (plaintiff) was pretty drunk when he went to bed, and told the bell boy that he ought to know better than show him to a room with the windows open.

The plaintiff testified in substance that when he went to the room he liad a gold watch with him and a chain attached, and about fifty dollars in money; tliat lie knew he whs on the ground floor, and that a man could step right into liis room from the street; he did not know whether the window was open, but that the inside blinds on the window shoved up and down, and they were closed. There was a bath room connected in which he took a bath; that when he retired he put his vest on a hook in the room, and his watch was in liis, vest pocket; he put his pants on the bedpost and his money was in the pants pocket; that he was awakened at two o’clock and he observed that these things were gone, and he never found tlienn As to the light he first testified: I left that light that night; the gas was burning at full head, and it was so burning when they woke me up.” As the examination proceeded he said he didn’t remember swearing to just what has been stated, but the fact was that while the light was burning in his room he had turned it partially down ; tliat when he awoke lie found the .window wide open from the bottom, and that the inside shutters had been pushed together; that when he retired lie did not go tó look as to whether the shutters were closed or latched; that he paid no attention to the window, but persisted in saying that the blinds were closed; he denied that he was under the influence of licpior, but he admitted that he had taken a glass or two of beer with his friends, with whom he had been riding, at a saloon before coming to the hotel.

The defendant had posted the proper notice in his hotel that was required by chapter 421 of the Laws of 1855, as amended by chapter 227 of the Laws of 1883, notifying the guests that a safe had been provided in the hotel in which the money, jewels or ornaments of the guests might be deposited, and that if they should neglect to deliver such money, jewels or ornaments to the person in charge of the office for deposit in such, safe, the proprietor of the hotel would not be liable for the loss of such jewels, money or ornaments. The learned trial judge held that the plaintiff could not recover for the money lost, as the statute protected the defendant in that regard, but might recover the value of the watch and chain, unless the plaintiff’s negligence, under the circumstances, had contributed to the loss of the property, and that question was submitted to the jury, who, after being out two days, brought in a verdict for the defendant. A motion for a new trial was made upon the minutes of the judge, and the court granted a new trial, and in a brief -opinion states the impression of tlie court that the verdict rendered was against the evidence, and the result of passion or prejudice on the part of the jury.

The appellant insists that under the statutes cited the defendant is not responsible for the loss of the watch and chain, as it comes within the description of the property covered by the notice that should be deposited in the safe, and cites Rosenplœnter v. Roessle (54 N. Y. 262, 266) As there is some confusion in the cases upon this subject, it may be useful to glance at the decisions relating to it.

In Gile v. Libby (36 Barb. 70) the action was against an innkeeper for the value of a watch and chain, gold pen and pencil ease and twenty-five dollars in money. The statutory notice had been posted in the hotel, and the court held that the watch,and chain were neither jewels nor ornaments, and that the plaintiff might recover for those as well as the small amount of money which he had a right to keep about his person, and that the statute requiring the deposit of the money in the safe referred not to the small amount usual!j carried by guests but to larger amounts. This was a General Term decision of the first department and was not reversed.

But in Hyatt v. Taylor (51 Barb. 632) the Broome General Term held that as to money and jewels the guest was not excused for retaining them to any extent. If he did and they Avere stolen he must bear the loss. This case Avent to the Court of Appeals, Avhere the judgment was affirmed (42 N. Y. 258), and the vieAV of the General Term as to jewels and money Avas sustained, and Ave may, therefore, regard Gile v. Libby as to jewels and money overruled.

In Bernstein v. Sweeny (33 N. Y. Super. Ct. [1 J. & S.] 271) an action was brought to recover for a watch and chain and diamond shirt studs. The court held that a watch and chain were not within the meaning of the statute jewels or ornaments for the loss of which the hotel proprietor is not liable, but is protected under the statute. Allen, J., speaking for the Court of Appeals in Ramaley v. Leland (43 N. Y. 539) at page 542, says: “ The statute permits a proprietor of a hotel to relieve himself from his strict common-laAV liability in respect to certain classes of property upon compliance with the prescribed conditions, but the exemption is limited to the particular species of property named, and being in derogation of the common laAV cannot be extended in its operation and effect by doubtful implication so as to include property not fairly within the terms of the act; * * * By statute the proprietors of hotels may provide a place of safe-keeping of money, jewels or ornaments belonging to the guests,” etc.

A watch is neither a jewel or ornament as these words are used and understood either in common parlance or by lexicographers. It is not used or carried as a jewel or ornament, but as a time piece or chronomoter, an article of ordinary wear by most travelers of every class and of daily and hourly use by all. It is as useful and necessary to the guest in his room as out of it, in the night as the daytime. It is carried for use and convenience and not for ornament.”

In Rosenplœnter v. Roessle [supra) an action was brought to recover a lady’s bracelet, stud,'hair .pin, ’sleeve-buttons,'etc., which were stolen from her’trunk in the Relavan House, Albany. The court held that the statutory exemptions applied to these articles and that the plaintiff could not recover. Judge Earl in the opinion in that case, in speaking of the cases of Gile v. Libby and Hyatt v. Taylor (supra), says as follows, at page 266 : The law is thus settled in this State that, if a guest on retiring to bed at night removes a watch or jewelry from his person or leaves money in his pocket and neglects to deposit the same in’ the safe provided for that purpose, he cannot hold the landlord liable for the loss of the same, provided the notice required by the statute had been posted,” etc.

In so far as the foregoing statement includes a watch it was evidently an inadvertence on ths part of the learned judge, or at least obiter. There was no watch in controversy in that case, but the question was directly before the same court a short time before in Ramaley v. Leland (supra), where an action had been brought against the proprietor of the Metropolitan Hotel in New York by a guest to recover the value of a watch that had been stolen from his room.

We must hold that the law is correctly stated in Ramaley v. Leland, and, therefore, the first contention-'of the defendant cannot prevail.

But the defendant also contends that he is relieved from responsibility for the loss of this watch and chain because of the negligence of the plaintiff contributing, and without which it would not have occurred. The evidence of the intoxication of the plaintiff was received upon this question of negligence upon the principle asserted in Walsh v. Porterfield (87 Penn. St. 376, 378) that if the plaintiff was intoxicated and this in any way contributed to the loss, he could not recover. It is more probable that an intoxicated man, or one whose reason and judgment is obscured by drink, may be less cautious, even of property upon which he sets high value, than one in possession of his normal faculties. Such, indeed, is the common experience of mankind. This question was fairly submitted to the jury by the learned trial court, and, in our judgment, was properly submitted, and the verdict of that jury should not be disturbed.

We have stated the leading features of the evidence at some length, bearing upon the question of the plaintiff’s negligence, without desiring to prejudice his case in any way upon another trial by a statement of the effect of the evidence- upon this question. W e simply say, without repeating the evidence, that the bare statement of that evidence must lead to the conclusion that a serious question exists as to whether the plaintiff was not so negligent as to destroy his right of recovery. A guest going to a hotel should use reasonable care and caution to protect his property and himself from the prowling night thieves that infest hotels and cities. There was evidence to go to the jury, and upon which they might act, showing that the plaintiff did not exercise that ordinary care which he should have done under the circumstances. Take the whole evidence together and the jury might conclude that there was an open window in this room on this summer night, through which any street thief could creep with the slightest effort, and through which he could see by a broad light that fell upon a sleeper, with his vest, containing his watch, hanging up on a peg, and his pants, containing his money, conspicuously placed, and that that condition was created by the plaintiff himself, or permitted by his negligent ignorance of the situation.

It was held in Swann v. Smith, by the General Term of the New York Common Pleas (14 Daly, 114), that an hotel keeper was not liable for property stolen from the plaintiff’s room, under the circumstances there stated, when the plaintiff had left the door unlocked, as in doing so he indicated want of ordinary care.

And in Ramaley v. Leland (43 N. Y. supra) the court said that the question whether the plaintiff could and did bolt his door was properly submitted to and passed, uuon by the jury upon the question of plaintiff’s negligence.

Certainly, if the failure to lock the inside door of the' plaintiff’s-room in a hotel was sufficient upon the question of negligence to' carry the question to the jury, the circumstances in this case are sufficient.

Our attention is called to the rule that granting and refusing new trials on the minutes is a matter largely resting in the discretion of the trial court. That rule does not assist the plaintiff in this case, as; the circumstances of negligence to which the evidence points are so' formidable that we must review the discretion of the trial court and reverse this order.

Nor can we discover anything in the. case or in the conclusion of the jury or in the length of time it took to consider the case, to justify the conclusion that the jury were governed by passion or prejudice.

The order granting a new trial should be reversed and judgment in favor of the defendant entered upon the verdict, but without costs..

Lewis and Bead let, JJ., concurred.

Order reversed, without costs.


source: Caselaw Access Project

author: Ward, J.:

license: Public Domain

text:
    Daniel Crowell, as Administrator, etc., of Elizabeth Crowell, Deceased, Plaintiff, v. Howard Thomas, Defendant.

      jVaster and servant — duty and liability of the master — question of negligence fov the jmy.

    Although the master does not warrant the absolute safety of an employee, yet he is bound to take heed that he does not, through his own want of care, expose his servant to unnecessary risks or danger either from the character of the tools with which he supplies him or of the place in which he requires him to work.
    The master is liable for an injury to a servant caused by the concurrent negligence of the master and a fellow-servant.
    Upon the .trial of an action brought to recover damages resulting from the death of the plaintiff’s intestate by reason of the alleged negligence of the defendant, it appeared that the deceased, a girl, was working in a fruit-canning factory in a room where there was an ordinary barrel placed upon a table and used to hold hot and cold water; that a steam pipe and a cold water pipe entered the barrel at the top; that the steam pipe connected directly with a steam boiler; that there was no steam gauge; that on the top of the barrel and behind the two pipes there was a vent pipe which constituted the only means of escape for the steam in the barrel, but that at the time of the accident a plug had been inserted in the vent pipe to prevent the escape of water which would otherwise bo forced out by the pressure of steam; that while the barrel was in charge of the general superintendent of the establishment, instead of the employee who usually attended to it, it exploded and killed the girl who had been directed by the superintendent to draw hot water from the barrel, although .such drawing of water did not appear to be any part of her duty.
    There was evidence tending to show that, with the pressure in the boiler at the time of the accident, the consequent pressure in the barrel was far beyond its strength.

      Held, that the question of the defendant’s negligence should have been submitted to the jury, and that it was erroneous to dismiss the complaint.
    Motion by the plaintiff,. Daniel Crowell, as administrator, etc., of Elizabeth Crowell, deceased, for a new trial upon a case containing exceptions ordered to be heard at the General Term in the first-instance upon a dismissal of the complaint directed by the court after a trial at the Monroe Circuit before the court and a jury on the 11th day of December, 1895. ' ‘

      Charlen Yan Voorh'm, for the plaintiff.

      Walter S. llubbell, for the defendant.'
   Ward, J.:

The deceased, Elizabeth Crowell, a girl of eighteen years of age, was employed in the canning factory of the defendant in the village of Eairport., Monroe county, in the summer of 1892. She had worked in the factory the year before a short time, earning one dollar and twenty-five cents. In June, 1892, she worked a couple of weeks and again about a week before the ninth of August, at which time she was fatally scalded in consequence of an explosion of a barrel in the factory caused by steam. The business of the factory was canning fruit of various kinds. The duties of the deceased were to work at a table, handle, cleanse the fruit, j>our syrup upon it and assist in the canning. The barrel referred to was stationed in a large room where the girls and women employed in the factory were at work.. It was placed upon a table and the top of the barrel was about seven feet from the floor. It was an ordinary barrel with iron hoops and not made specially for the purpose for which it was used. From this barrel hot and cold water were taken for the use of the,factory in canning the fruit as needed. The water was taken-from an ordinary faucet in the lower part of the barrel. Two pipes were connected with this barrel, one a cold-water pipe and the other a steam pipe. These pipes entered the barrel from the top, and' in each pipe at a point just above the head of the barrel was a valve by means of which the water or steam could be turned on or shut off. The steam pipe where it entered the barrel was a three-quarter-inch pipe. On the top of the barrel and behind the two pipes was a vent pipe an inch in diameter which extended above the top of the barrel five or six inches. It was put there to allow the steam to escape from the barrel. Tlie steam from the steam pipe communicated directly with the water in the barrel. There was no steam gauge at the barrel so that one coulij, fek how many pounds of steam pressure there was on the barrel, and the only means of escape of steam was through the pipe above specified. An expert witness testified in effect that this barrel would hold about fif- ■ teen pounds to the square inch before bursting-. The fireman of the factory testified that, at the time of the accident, he had on about seventy pounds of steam. The steam pipe to the barrel was attached to a main pipe or feeder that conveyed the steam directly from the boiler. The expert testified as follows: “Q. Can you tell this jury how much pressure a common whiskey barrel will hold of steam before it will burst; how much to the square inch ? A. I shouldn’t think it would exceed fifteen pounds. Q. Will yon tell the jury on a common whiskey barrel wliat the pressure would bo of 10 pounds of steam to the square inch coming from a steam boiler ? A. About fifteen tons. * * * The Court.— Q. Will it be the same to the square inch on the barrel as it is in the boiler? A. Yes, sir.”

James Burlingame was the defendant’s superintendent at the factory, having full charge of the same, employing and discharging the workmen and directing the whole operations of the factory, and there was evidence upon which the jury could find that in the management of the factory he was the alter ego of tlie defendant. He had had charge of it for several years; had been the owner of it prior to the ownership of it by the defendant; he was daily on duty at the factory and appeared to be entirely familiar with its operation; his brother, Llewellyn Burlingame, was an employee in the factory and his principal duty was to take charge of this barrel, manipulate the steam connected with it and take the water from it as needed. One witness says the girls and women did not draw the water from the faucet; “ Llewellyn used to do that mostly. He most always attended the barrel. I never saw any woman draw the hot water through that faucet before. That wasn’t our business.” This was said with reference to the fact of the deceased drawing the hot water on that morning, to which we shall refer hereafter. The evidence does not disclose that prior to the morning of the accident the deceased had anything to do with the barrel or had any acquaintance with its use or how the steam was communicated to or operated in the barrrel, or what protection there existed against accident from the use of steam in the barrel. The steam had not been used in this barrel until the morning of the accident that season, except early in July on one occasion, and the evidence tended to show that the deceased had no knowledge in regard to that transaction. The engineer of the factory and the brother having charge of the ban-el had discovered that the cold water ran out of the escape pipe on account of the pressure, and to obviate this difficulty the engineer whittled out a plug to fill this escape pipe, and inserted the plug in the pipe about the nineteenth of July. This plug extended above' the top of the pipe four or five inches. One witness swears that he saw the plug in the pipe a week or two before the accident. Another witness swears that while standing on the floor you could plainly see the plug; that it extended above the barrel so that you could see it plainly. Another witness testified that before the plug was put in, cold water that was forced out by the pressure could be plainly seen, and also it could be seen that the water was not forced out after the plug was put in. The engineer testified that he cautioned Llewellyn Burlingame not to permit the plug to be in the pipe when the steam was put in the barrel-After the explosion of the barrel and the injury to the deceased, the plug was found in the escape pipe, establishing the fact that at the time of the explosion there was no escape of the steam that was being forced into this barrel. On the morning of the accident, and before the deceased went to work, and while Llewellyn Burlingame was at the barrel, the superintendent appeared and directed him to go up stairs and attend to other business, sayimg that he would attend to the barrel. The superintendent himself turned the steam into the barrel and directed the deceased to attend to the faucet and take the hot water to the table as needed. She obeyed and was engaged in this work when the explosion occurred that destroyed her life. The head of the barrel blew out and she was scalded to death. There was no coil or pipe passing through the cold water in the barrel through which the steam could pass, a familiar contrivance for heating water. No caution was administered to the deceased by the superintendent as to any risk or danger in her working around this barrel and operating this faucet. A very slight inspection of the barrel would have enabled the superintendent to have seen when he turned the steam into the barrel and directed the deceased to do this work, that the vent hole was closed by this plug, and that there was no escape for the steam that was being put into this weak vessel, and it was for the jury to determine from the whole evidence whether he had not been guilty of negligence under the circumstances. The law governing such cases is well stated in Tissue v. The Baltimore & Ohio R. R. Co. (reported in 33 Alb. L. J. 284) by the Supreme Court of Pennsylvania as follows : “ Whilst it is true that the master does not warrant the absolute safety of those whom he employs to do his work, yet * * * he is bound to take heed that he does not through his own want of care expose his servant to unnecessary risks or dangers either from the character of the tools with which he supplies him or the place in which he requires him to operate.” (See Bailey v. The Rome, Watertown & Ogdensburg R. R. Co., 139 N. Y. 302.) There was evidence to go to the jury upon the question whether the defendant, through his superintendent, did not understand the whole situation; the amount of steam that was liable to be forced into this barrel; the capacity of the bai-rel to withstand it; the means of escape, if any; whether any inspection was made of the barrel before putting the steam into it and putting the deceased at work there; whether it was not the duty of the superintendent to make such inspection; whether he was not negligent in having failed to do so.

The-learned counsel for the defendant insists that while the eause of the explosion was negligence, it was in consequence of the negligence of the engineer and of the brother, who were co-servants with the deceased. The difficulty with that contention is that the superintendent superseded the brother, took charge of the barrel himself, directed the deceased in her work, and was for the time being in charge of the cause of the accident. It was the superintendent who provided the unsafe and dangerous place for the deceased' to work ívithout giving her notice of her danger. Even if the negligence of the co-employees contributed to this accident it was done in conjunction with the negligence of the defendant himself, through liis alter ego, and without which the accident would not have occurred. The defendant is, therefore, as liable as though he were the sole cause of the accident. (Cone v. The Delaware, Lackawanna & Western Railroad Co., 81 N. Y. 206; Booth v. Boston & Albany Ry. Co., 73 id. 38; Brehm v. The Great Western R. R. Co., 34 Barb. 256; Shearman & Redfield on Negligence, § 10.)

A master is liable for an injury to a servant caused by the concurrent negligence of the master and a fellow-servant. (De Weese v. Meramec Iron Co., [Mo. Sup.] 31 S. W. Rep. 110.)

The exceptions taken at the trial bring up the question here considered. We are of the opinion that the case should have gone to the jury upon the question of the-defendant’s negligence.

A new trial should, therefore, be granted, with costs to abide event.

Lewis, Bradley and Davy, JJ., concurred.

Motion for new trial granted, costs to abide the event.


text:
    Emily L. Harris, Respondent, v. Archibald M. Graham, Appellant.

      Oloud on title — void judgment — remedy of a third person where a deficiency judgment is entered, when by an agreed purchase the mortgagee had been paid in full —parties.

    Upon the trial of an action brought hy Emily L. Harris to remove a cloud from the plaintiff’s title to certain real property the following facts were proved:
    The defendant, Archibald M. Graham, in January, 1888, recovered a judgment of foreclosure against one Hiram W. Bradshaw and others which covered the premises in question, and just before the sale in foreclosure Graham, Bradsbaw and one Jacob Barclay made an agreement lo tbe effect that t.lie property should be struck off to Graham at the referee’s sale for a nominal price; that Graham should thereupon convey the premises to Barclay, who was to pay therefor §2,800, and that Bradshaw should have the' benefit of whatever remained over and above Graham’s judgment. The judgment was for §2,374.76; the premises were sold in March, 1888, to Graham by the referee for §1,400; and in June, 1888, a deficiency j udgment ivas entered against Braclslniw for §908.23. It further appeared that on or before April 9, 1888, Barclay paid Graham in full and received from him a quit-claim deed of the premises.
    Bradshaw' subsequently died intestate, and his administrators, in January, 1892, sold certain of his real estate (not the property covered by the mortgage foreclosure) for the payment of his debts. At the sale the plaintiff bought the premises in question for §810, subject to the apparent lien of the deficiency judgment. The premises were sold subject lo all incumbrances, but the deed of the administrators to the plaintiff did not bind the plaintiff to pay them. The plaintiff went into possession, demanded a cancellation of the deficiency judgment and, this being refused, brought the present action.

      Held, that the deficiency judgment should not have been entered, Graham having been paid in full by Barclay;
    That as the judgment was a nullity, both at law and in equity, the plaintiff had a right to have it removed as a cloud upon her title;
    That if the surplus in Graham’s hands (being the difference between Barclay’s purchase at §2,800 and the amount due upon the mortgage, §2,374.76), in equity, belonged to the estate of Bradshaw, the failure of the plaintiff to make those interested in that estate parties, was not a defect which prevented her from maintaining the present action.
    Appeal by tbe defendant, Archibald M. Graham, from a final judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Wayne on the 12th day of March, 1894, upon the decision of the court rendered after a trial at tbe Wayne Equity Term, whicli judgment ordered, adjudged and decreed that the judgment of foreclosure and sale in the action in the Wayne County Court by tbe defendant, against Hiram W. Bradshaw and others, dated January 8, 1888, and entered in the office of the clerk of Wayne county on the 10th day of January, 1888, decreeing there to be dne the defendant, from said Hiram W. Bradshaw, the sum of $2,265, interest and principal, and the sum of $109.76, costs and disbursements, and all interest on same, and all costs and expenses of the referee’s sale thereunder, on March 31, 1888, were fully paid and liquidated before the filing of the referee’s report of sale and the entering of the order of confirmation of same and the entering in said Wayne county clerk’s office in said action, the judgment of deficiency against said Iiiram W. Bradshaw and in favor of the defendant for $914.76, on the 27th day of June, 1888; that the said judgment of deficiency of $914.76, entered in said Wayne county clerk’s office on the 27th day of June, 1888, in said foreclosure action, in the Wayne County Court, against said Iiiram W. Bradshaw and in favor of said defendant, was entered Avitliout authority, and Ai'as and is illegal and void; that said judgment of deficiency is a cloud upon plaintiff’s title to the premises here in question, and that the plaintiff is entitled to have the said judgment of deficiency canceled of record, as a cloud upon her title, and upon the production of the judgment, to be entered in this action to the defendant, he shall execute and delii'er a proper satisfaction of said judgment of deficiency to the plaintiff, and that the plaintiff recover of defendant ninety-three dollars and three cents, her costs and disbursements of this action, as taxed by the clerk of Wayne county, and that execution issue.

      Charles T. Saxton, for the appellant.

      E. W. Ilaomn, for the respondent.
   Ward, J.:

On the 8th of January, 1888, the defendant recovered a judgment. of foreclosure and sale against Iiiram W. Bradshaiv and Mary, his wife, and another, in’the Wayne County Court. The judgment Avas $2,374.76, and it Avas adjudged that Iiiram W. BradshaAv should pay any deficiency that might arise upon the sale. The mortgaged premises AA'ere duly sold by a referee in March, 1888, and were purchased by defendant at the sale for $1,400. The referee certified a deficiency of $903.23 on the 2d day of April, 1888, and on Juno twenty-seventh judgment Avas entered in the Wayne county clerk’s office — the referee’s report having been confirmed.— for such deficiency and interest. On February 20,1890, Hiram W. Bradshaw died intestate, and his wife and William W. Gatehell were appointed his administrators. In March, 1891, the administrators commenced a proceeding to sell the real estate of the intestate for the payment of his debts. A decree for the sale of the premises Avas made by the surrogate of Wayne count}' (he having jurisdiction), and in pursuance thereof certain real property of Iiiram W. Bradshaw, on the 23d day of January, 1892, was sold at public auction, and bid off by Albert Harris, tlie.husband of the plaintiff, but for her, for $310. These premises were subject to the apparent lien of the deficiency judgment. A deed Avas afterwards executed by the administrators conveying the premises sold to the plaintiff. At the time of the sale the terms thereof were in writing, signed by one of the administrators, and presented to the bidders before the sale, and those terms provided that the premises would be sold subject to all taxes, assessments and other incumbrances which at. the time of the sale Avere liens or incumbrances upon the said premises. A similar statement Avas contained in the deed to the plaintiff, but there Avas no covenant in the deed binding the plaintiff to pay such incumbrances or taxes. Albert Harris, the plaintiff’s husband, upon the purchase, signed a writing agreeing to comply with the terms and conditions of the sale.

The plaintiff claimed that at the time of the foreclosure sale an arrangement Avas made between Bradshaw, the defendant and one Jacob Barclay, Avho had come to bid on the premises, that the defendant should bid them off and deed them to Barclay for $2,800, and AvhateA'er there was over and above defendant’s claim under the foreclosure judgment and costs, Bradshaw should have the benefit of. After the sale, and before the confirmation of the referee’s report and the entry of the judgment for deficiency, Barclay paid the defendant $2,800, $1,000- doAvn and the balance on the 9th of April, 1888, and received a quit-claim deed of the premises coArered by the foreclosure judgment, from the defendant on that day. The plaintiff, after her purchase under the administrators’ sale, went into joossession of the premises covered by her deed, and demanded of the defendant the cancellation of the deficiency judgment, and that it be removed as a cloud upon her title, AA'hich was refused, Aidiereupon this action Avas commenced, and the court upon the trial found in favor of the plaintiff, and directed judgment that the deficiency judgment be canceled of record as a cloud upon the plaintiff’s title, and that defendant execute and deliver a proper satisfaction of such judgment. The court found the facts substantially as aboAre stated, and also found that the said deficiency judgment Avas paid in full before it Avas entered.

The eighth finding of fact was as follows : That jnsfc prior to the sale by the referee the said Jacob Barclay, this defendant, and Hiram "W. Bradshaw made an agreement by which Barclay was to purchase the mortgaged premises for $2,800, and that the property should be put up for sale by the referee and struck off to this defendant at a nominal price, and then he should give said Barclay a deed of the same.”

The defendant claims error in this judgment for the following-reasons : First. There was no such agreement as contained in the eighth finding of fact, but the preponderance of evidence before the Special Term was that no such agreement -was made ; that the defendant purchased the premises and afterwards sold them to Barclay, still retaining his deficiency judgment. Second. That Harris (plaintiff’s agent) was informed at the administrators’ sale of the deficiency judgment, and that it was a lien upon the premises sold, and was a part of the consideration of the sale to be paid by the purchaser. Third. That the proper parties were not before the court, as according to the plaintiff’s claim the sale was for the benefit of Bradshaw, and his personal representatives should have been made parties to the action, and the complete determination of the controversy could not be had without their being made such parties.

Tile pivotal question in the case is whether there was a contract between Barclay, the defendant and Bradshaw as claimed by the plaintiff and found by the court. A careful examination of the evidence in the case would seem to sustain the finding of the trial court upon this question. Three witnesses testified upon the subject : Barclay, the defendant and his attorney Vandenberg. Barclay swears unequivocally to the contract as claimed by the plaintiff. The defendant and Vandenberg both admit in their testimony that Barclay and Bradshaw were both present at the sale; that Barclay said that he would not bid at the sale, but that the defendant could bid off the property and he (Barclay) would take the title to the premises from the defendant; that before the sale the defendant and 'Barclay had a conversation and entered into an agreement that Barclay should pay $2,800 for the premises and that the defendant should deed them to him. No evidence was given showing that the deficiency judgment was to remain, but the amount paid, being $300 or $400 in excess of the entire claim of the defendant in the foreclosure judgment, the inference seems irresistible from the testimony of these witnesses that Barclay took title from the defendant discharged of the said foreclosure judgment and all interest and costs. It was the duty of the defendant, if he intended when he sold this property to Barclay to reserve the right to enforce a deficiency judgment against it of nearly $1,000, to have so notified Barclay, and his failure to do so sustains the contention of the plaintiff as to what the real transaction was.

In regard to the second objection urged by the defendant it is sufficient to say that it cannot be maintained for the reason that Harris as agent for the plaintiff in no maimer assumed to pay the said deficiency judgment or any portion thereof as a part of the consideration of the purchase. The agreement specified in the deed of the plaintiff, that she took the premises subject to all liens and incumbrances, simply meant such liens and incumbrances as were valid and could be enforced. This deficiency judgment should not have been entered. It ivas in fraud of the rights of Barclay. The deficiency on which the judgment ivas based liad been paid before the judgment was entered. As the judgment was paid it could not be enforced at law or in equity, but it was an apparent incumbrauce upon the plaintiff’s property, and she could directly attack it as such, and none of the rights of the Bradshaw estate could be possibly affected by the judgment removing such cloud from her title. But, assuming- it to have been a valid incumbrance, the plaintiff simply taking her deed subject to it, did not create an obligation on her part to pay it; in order to bind her so to do there must have been a covenant or obligation contained in her deed that she should pay it, and then, if she accepted the deed, she would be bound to do so. (Belmont v. Coman, 22 N. Y. 438; Equitable Life Assurance Society v. Donovan, 100 id. 628; Smith v. Truslow, 84 id. 660.)

Several witnesses on behalf of the defendant testified that when the terms of sale were read the question arose as to what these incumbrances were, and that the defendant’s deficiency judgment was mentioned as one of them. Some of these witnesses are not clear Avhetlier this statement Avas made in the hearing of Harris. Harris denies that he heard anything of this kind, and the case does not contain any proof that the plaintiff, by her agent, agreed verbally or in Avriting to pay the deficiency judgment as a part of the purchase quice of the property. Some evidence was given to the effect that Harris had learned of this deficiency judgment before or at the time of the administrators’ sale, but the plaintiff gave evidence tending to to show that Harris and others connected with the sale claimed that the judgment had been paid or could not be enforced. The Special Term finds that the terms of the sale were in writing, and there was evidence to sustain that finding, and it will not be questioned here.

The conclusions of the Special Term upon the facts seem to be fairly sustained by the evidence and are conclusive upon appeal.

As to the third contention, as to there not being the proper parties, the answer does not set up any defect of parties, nor did the Special Term reach the conclusion that it was necessary to bring in other parties before a complete determination of the matters in controversy in this action could be had, nor can we see that such action was necessary. The owner of the land upon which the deficiency judgment was an apparent lien and the owner of such judgment are parties to the action which would seem to be all that is necessary for the purpose of the action, which is simply to remove the cloud ■of the defendant’s judgment from the plaintiff’s land, but the defendant also contends that the effect of this judgment is to deprive the Bradshaw estate of the benefit of the alleged agreement testified to by Barclay and transfer the same to the plaintiff. This could ■only relate to what remained of the $2,800 paid by Barclay to the ■defendant over and above the amount of the defendant’s costs, interest, etc. That amount is in the defendant’s hands, and if it belongs to the estate of Bradshaw the defendant holds it as trustee of the Bradshaw estate, and may be liable to account as such to that estate. Be that as it may, the question does not concern us here, nor is it necessary to determine that question in this action.

But the judgment should be modified, so as to make it effectual to remove the cloud of the deficiency judgment from the plaintiff’s land, and so as to satisfy it as against her, and as so modified affirmed, with costs to the plaintiff.

Lewis and Bradley, JJ., concurred.

Judgment modified, so as to make it effectual to remove the cloud of the deficiency judgment from the plaintiff’s land, and so as to satisfy it as against her, and as so modified affirmed, with costs to the plaintiff.


text:
    The Town of Wirt, Plaintiff, v. The Board of Supervisors of Allegany County, Defendant. The Town of Belfast, Plaintiff, v. Same, Defendant. The Town of Friendship, Plaintiff, v. Same, Defendant.

      Town — its right to make a county contribute to the support of bridges — a statutory right lost by repeal — vested rights under a statute — submission of a controversy— rights saved — estoppel — parts of a statute not included in a revising-statute, not revived by construction.

    Prior to the passage of chapter 568 of the Laws of 1890, known as the “Highway Law,” the burden of supporting bridges within towns was east upon the towns, alone and counties could not be compelled to contribute thereto.
    The remedy given to towns by section 130 of chapter 568- of the Laws of 1890, enabling them in certain cases to compel the county to contribute to the support of bridges in a town, was purely statutory, and any right given by the Legislature through a statute can be divested by the Legislature.
    The right of towns to compel a county to contribute in certain cases to the support of bridges in a town, given by section 130 of chapter 568 of the Laws of 1890, was taken away by chapter 416 of the Laws of 1895.
    Three towns presented to the board of supervisors of a county claims for the support of bridges in such towns under chapter 568 of the Laws of 1890; the board of supervisors did not pay them and postponed its consideration for one year. Subsequently the town and the board of supervisors filed in the clerk’s, office of the county a submission of the controversy, upon an agreed state of facts; four days prior to such filing chapter 416 of the Laws of 1895 went into' effect repealing chapter 568 of the Laws of 1890, and practically depriving the towns of any remedy against the county.

      Held, that by the mere filing of the submission the towns acquired no vested' rights under chapter 568 of the Laws of 1890;
    That, assuming the validity of section 31 of the Statutory Construction Act (Chap. 677 of the Laws of 1899), it could not be said that the case came within that section as it saves from the repeal of a statute a “right accruing, accrued or acquired,” while in the case at bar it could not be said that the town acquired any right by the mere presentation of the claims and their practical rejection by the board of supervisors.
    A part of the submission was a resolution, passed ,by the board of supervisors, requesting their representatives in the Legislature to secure the repeal of the Law of 1890, chapter 568, section 130, in so far as it created a liability upon the part of the county to reimburse a town for expenditures upon bridges within the town; and also directing the employment of counsel to resist the payment of the claims presented, if proceedings were taken to enforce them by mandamus.

      Held, that, in view of this resolution, it could not he claimed that the hoard of supervisors in postponing the claims for one year had estopped itself from pleading, as a defense to the claims, chapter 416 of the Laws of 1895.
    When a statute is revised, and parts of the former statute are omitted from the statute revising it, the part so omitted cannot he revived by construction.
    Submission of a controversy upon an agreed statement of facts, pursuant to section 1219 of the Code of Civil Procedure.

      S. M. Norton, for the plaintiff.

      Oha-rles IT. Brown, for the defendant.
   Ward, J.:

The towns of Wirt, Belfast and Friendship in the county of Allegany, in December, 1894, respectively presented to the board of supervisors of Allegany county a verified petition through the supervisors of their respective towns, setting forth that in several years mentioned the expense for the construction, care, maintenance and repair of its bridges had exceeded one-sixth of one per centum of the assessed valuation of the taxable property of the town for each of those years, and claiming that the county should pay not less than one-third part of such excess. These claims were made under section 130 of chapter 568 of the Laws of 1890, known as the Highway Law, which was as follows: The towns of this State, except as otherwise herein provided, shall be liable to pay the expenses for the construction and repair of its public free bridges constructed over streams or other waters within their bounds, and their just and equitable share of such expenses when so constructed over streams or other waters upon their boundaries, except between the counties of Westchester and New York; and when such bridges are constructed over streams or other waters forming the boundary line of towns, either in the same or adjoining counties, such towns shall be jointly liable to pay such expenses, except that when the whole expense in any one town for any one year, for the construction, care, maintenance, preservation and repair of its bridges, shall exceed one-sixth of one per centum on the assessed valuation of the taxable property of the town for that year, the county in which such town is located shall then pay not less than one-third part of such excess. Each of the counties of this State shall also be liable to pay-for the construction, care, maintenance, preservation and repair of public bridges lawfully constructed over streams or other waters forming its boundary line, not less than one-sixth part of the expenses of such construction, care, maintenance, preservation and repair.”

The petition of the town of Wirt simply set forth that from the 1st day of March, 1894, to the eighth day of November in that year, the expíense of the town in the construction, repiair and maintenance of its bridges was $2,193.20, and exceeded one-sixth of one pier centum of the assessed valuation of the town for that year in the sum of $1,365.S9, and prayed that one-tliird of such excess should he spiread by the board of supervisors of the county upon the county. The bridge or bridges 'upion which this expenditure was made was not described in the petition, nor was the expíense incurred given in items as required by section 132 of the act quoted, which section is as follows : The commissioners of highways of every town in which the whole or any piart of any free bridge may be shall make and deliver to the supiervisor of the town on or before the first day of November in each year a written statement verified by one of them, containing a description of such bridge, the whole expense in items incurred by the town during the year pireceding, for its construction or repiair.”

The pietition of the town of Friendship) set forth that between the first of March and November, 1892, the town expended in building an iron bridge at the foot of Belmont hill, known as Dayton bridge, $4,202.46; repairing Pearse bridge, $5; repairing bridge at Nile, $40 j making an excess of expenses, above the one-sixth of one pier centum of the assessed valuation of the town for the year 1892, in the sum of $2,702.82. No further items were given of the expíense or description of the bridges.

The town of Belfast presented four sepiarate claims for construction and repairs of bridges within that town for the years 1891, 1892, 1S93 and 1894. In these claims the bridges upion which the expenditures were made seem to have been properly described, and the expenditures piropcrly made out in items as required by the statute. The excess of the one-sixth of one pier centum of the assessed valuation of che town for 1891 was claimed to be $2,277.88. In 1892 such excess was claimed to be $885.10. 1 In 1893, $1,132.44; and in 1894 such excess was $3,076.43.

All of "these claims were presented after the 1st day of November, 1894. Upon, the presentation of these claims the chairman of the board of supervisors, as the case discloses, was duly authorized by the board, by resolution, to execute the statement of facts contained in the submission. The submission was made pursuant to section 1219 of the Code of Civil Procedure, and recites that a controversy existed between the plaintiffs and defendant, and contained a statement of the facts above briefly referred to and was verified, pursuant to the statute, on the 11th day of April, 1895. On the 30th day of April, 1895, the submission ivas filed in the Allegany county clerk’s office.

The counsel produced upon the argument a paper which they treated as apart of the case on submission, being in the form of a stipulation, which was as follows: The Towns of Wirt, Belfast and Friendship v. The Board of Supervisors of Allegany County. On December 12, 1894, the following resolutions were adopted by the Board of Supervisors of Allegany County: “ Whereas, certain claims for the repair, maintenance and building of bridges in some of the Towns of Allegany County have presented, or may present, such claims under the Laws of 1890, sec. .130, chap. 508 ; and, whereas, it is thought advisable on the part of the Board of Supervisors, as such, not to audit any such claim or claims for such purposes prior to 1894, and there being no decision of the courts on such claims prior to said date, a test case must be had ; therefore,

Hesolved, That the chairman of the Board of Supervisors be authorized to enter into an agreement with a representative of the several towns and submit a test case, and that the chairman be-authorized to employ an attorney.

“ Hesolved, That the aétion of this Board of Supervisors on all claims presented by towns for money expended for bridge work be postponed until the annual session in 1895, and that no claim heretofore presented shall be prejudiced, and no advantage shall betaken or objection made by the Supervisors of Allegany County to any such claims by reason of such postponement, and the said claims shall be taken up and acted upon at the session in 1895, with the same effect as though disposed of at the annual session in 1894.”

On the evening of the same day, and after the passage of the „ above resolutions, the following resolutions were adopted :

“ Hesolved, That the Supervisors of Allegany County do respectfully ask our Senator from this district and Member of Assembly from this county to use tlieir influence to secure the repeal of the law of 1890, chap. 568, sec. 130, in so far as it may create a liability on tbe part of a county to reimburse any town therein for the building, maintaining, constructing or repairing of public bridges within the bounds of said town.
“ Hesolmecl, That in case there is a mandamus served upon the .Board relative to the claims presented against the county for building bridges in certain of the towns that the chairman of the JBoard be hereby empowéred to employ counsel for the Board to defend the county against any and all of such claims in such manner and to such an extent as he .may deem for the best interests of the county.
It is hereby stipulated that the foregoing statement and resolutions be added to the agreed case hereinbefore made herein and filed in Allegany county clerk’s office.
“Dated, August 15, 1895.”

This paper was filed in Allegany county clerk’s office August 15, 1895.

It is doubtful whether this last paper should be considered by us at all, as section 1281 of the Code of Civil Procedure provides that the action instituted by the filing of a submission “ must be tried by the court upon the case alone; and the case, submission, affidavit and a certified copy of the judgment and of any order or paper necessarily affecting the judgment, constitute the judgment roll,” but perhaps it may be treated as an additional statement under the latter clause of section 1281, although not verified as prescribed in section 1219.

On the 26th day of April, 1895, four days prior to the filing of the submission in the clerk’s office, an amendment to section 130 above quoted took effect, being chapter 416 of the Laws of 1895 and entitled An act to amend the Highway Law relating to liability of towns for construction and care of public bridges.” And provided-: Sec. 130 of chap. 19 of the General Law known as the Highway Law is hereby amended so as to read as follows: Sec. 130. The towns of this State, except as otherwise herein provided, shall be liable to pay the expenses -for the construction and repair of its public free bridges constructed over streams or other waters within their bounds, and their just and equitable share of such expenses when so constructed over streams or other waters upon their boundaries, except between the counties of Westchester and New York; and when such bridges are constructed over streams or other waters forming the boundary line of towns, either in the«same or adjoining counties, such towns shall be jointly liable to pay such expenses. Each of the counties of this State shall also be liable to pay for the construction, care, maintenance, preservation and repair of public bridges, lawfully constructed over streams or other waters forming its boundary lines, not less- than one-sixth part of the expenses of such construction, care, maintenance, preservation and repair,” thus eliminating entirely from the statute the provision upon which the claims of the plaintiffs in this action were ■ predicated, so that at the time of the filing of this submission the law upon which the claims of the plaintiffs were founded had no existence, but was repealed. (Matter of Estate of Prime, 136 N. Y. 355 People v. Wilmerding, Id. 363 ; McDermott v. Nassau El. R. R. Co., 32 N. Y. Supp. 884.)

The defendant contends, first, that the claim of the- town of Wirt should be rejected because the claim is not in conformity with the statute in not describing the bridges and in not setting forth the items of expenditures. The same objections are made to the claim of the town of Friendship so far as the items not being set forth, and further that it was not presented in time.

As to all the claims of the town of Belfast the defendant objects that they were not presented in time, with some other objections which will not be considered, and finally the defendant contends that the law upon which all these claims were founded having been repealed prior to the commencement of this action none of them are valid or can be enforced, and asserts the principle that a right of action is a matter of remedy merely, and any remedy given by a statute may be repealed by 'a statute. This proposition seems to-be well supported by authority. (Butler v. Palmer, 1 Hill, 324; Church v. Rhodes, 6 How. Pr. 281; Washburn v. Franklin, 35 Barb. 600 ; Curtis v. Leavitt, 15 N. Y. 153 ; McCotter v. Hooker, 8 id. 506; Hartung v. The People, 22 id. 103; Smith v. The People, 47 id. 338; Smith v. Banker, 3 How. Pr. 142; Victory Webb Printing Co. v. Beecher, 26 Hun, 49 ; Board of Health v. City of Rochester, 1 N. Y. Supp. 725.)

Prior to tlie act of 1890 the burden of supporting the bridges within the towns was cast upon the towns alone. The counties could not be compelled to contribute toward such support. The remedy, therefore, given the towns in 1890 was purely statutory, and the principle is a familiar one that a right given by the Legislature through a statute can be divested by the Legislature at will. Sometimes the repeal is conditional, reserving rights of action that had accrued under the repealed statute. There was no saving clause in this case. The repeal was unconditional. No right by contract existed in these towns against the county. The inchoate right under the statute to contribution from the county to the expenses incurred about the bridges had not ripened into a perfect claim. The claim had simply been presented,, and, upon being disputed, papers were executed looking toward a submission of the controversy to the court. No action had been commenced. By section 1280 of the Code of Civil Procedure it is provided: The case, submission and affidavit must be filed in the office of the clerk of the court to which the submission is made. * * * The filing is a presentation of the submission, and thenceforth the controversy becomes an action.”

But the learned counsel for the plaintiffs cites section 31 of the Statutory Construction Act, being chapter 677 of the Laws of 1892, which provides that “ the repeal of a statute or part thereof shall not affect or impair any act done or right accruing, accrued or acquired, or liability, penalty, forfeiture or punishment incurred prior to the time such repeal takes effect, but the same may be asserted, enforced, prosecuted or inflicted as fully, and to the same extent, as if such repeal had not been effected; and all actions and proceedings, civil or criminal, commenced under or by virtue of any provision of a statute so repealed, and pending immediately prior to the taking effect of such repeal, may be prosecuted and defended to final effect in the same manner as they might if such provisions were not so repealed.”

The precise effect that is to be given to this statute seems not to have been passed upon to any extent by the courts. It seems to be intended as a legislative panacea for many judicial ills. In the section quoted it not only assumes to voice the intent of all subsequent Legislatures in repealing statutes, but to assume the function of the court in construing them.

Our attention has not been called to a similar statute in this State, except chapter 21 of the Laws of 1829, which repeals numerous statutes, and adds: Section 6. “No offense committed and no penalty or forfeiture incurred previous to the time when any statutory provision shall be repealed, shall be affected by such repeal.” This statute was passed upbn in Mongeon v. The People (55 N. Y. 613, 618, 619), where the court confines the effect of this saving clause to the statutes repealed by said act, and the court, Allen, J., significantly adds: The Legislature could not declare in advance the intent of subsequent Legislatures or the effect of subsequent legislation upon existing statutes.”

There is appended to the Statutory Construction Law a statement of laws and statutes repealed thereby, and whether section 31, above quoted, under the authority of Mongeon v. The People, should not be limited to the statutes repealed by the Statutory Construction Law, query.

The Legislature may properly, as it often does, define the meaning of the terms used and the purposes and objects of particular statutes that are in force to take effect cotemporaneous with the statute of definitions; but it is difficult to see how the Legislature of one year can so far comprehend the nature, extent and purposes of statutes to be thereafter enacted by other Legislatures as to prescribe a rule in advance for their construction and operation; but, assuming that the saving clause of the Statutory Construction Act is to be regarded as attached to and made a part of the Repealing Act (Chap. 416 of the Laws of 1895), does it aid the plaintiffs? No action had been commenced when the repeal took effect or any legal proceedings in the proper sense, nor had an)7, vested rights accrued or been acquired or act done further than as we have stated to present the claims to the board of supervisors and have them rejected. If it be said that the towns may have incurred increased expenditures in regard to their bridges after the passage of the original act and before it was repealed upon the faith thereof, and, therefore, the repeal impaired an act done or right accruing, the answer is that no such presumption can be indulged in, because it will not be assumed that the town authorities expended any more money upon their bridges than was actually necessary, or what they would have been compelled to have done at all events.

In any view of tlie case, therefore, the repeal of "this statute is fatal to the plaintiffs’ case..

But the learned counsel for the plaintiffs •defendant is not in a position to assert the defense of the repeal of this statute; that it is estopped from so doing or has waived the right to insist upon such a defense by reason of the resolution of the defendant, above quoted, postponing the consideration of the plaintiffs’ claims until the annual session of 1895 ; that such postponement should not prejudice their claims, and that no advantage should be taken or objection made by the defendant by reason of such postponement. Assuming that the board could waive the effect of a statutory repeal, which is exceedingly doubtful, the most that can be said of this resolution in connection with the subsequent resolutions is that it waived the objection as to the time, because the statute required that the claims should be presented and acted upon the same year that they accrued, and the resolution ]3ostponed the matter a year.

But the very same day of the passage of this resolution the board ■(including tire supervisors from the plaintiffs’ towns) passed a further resolution asking the Legislature to repeal the very act under which the plaintiffs claim, and providing further that in case of any .attempt by way of mandamus to compel the 'board to pay the claims in question, the chairman of the board was empowered to employ counsel to defend the county -against such proceedings.

Of this resolution the plaintiffs had notice through their supervisors, who participated in the proceedings, as we assume, so that it is •difficult to see how this contention can prevail, or how the defendant can be charged with any bad faith in procuring the repeal of the •statute under which the plaintiffs claim.

It is also urged by the plaintiffs’ counsel that the omission of the Legislature to repeal sections 132 and 133 of chapter 568 of the Laws of 1890, which point out the mode of procedure in procuring the allowance of claims, and the imposition by the supervisors of the tax therefor, indicated an intention to leave the supervisors free to act in all cases which had previously accrued, thus amounting to a saving clause in the repeal. It will be seen that these sections were necessarily retained to carry out the statute as it existed after the Repeal in 1895, because then in certain cases the counties'were liable to pay not less than one-sixth part of the expense for the construction, care, maintenance and preservation of public bridges lawfully constructed over streams forming its boundary lines, which would, of course, be the boundary lines of towns as well.

When a statute is revised and parts of the former statute are omitted from the statute revising it, the parts so omitted cannot be revived by construction. (In Matter of Appeal of Southworth, 5 Hun, 55.)

These conclusions renders it unnecessary to consider the other objections raised by the defendant to the enforcement of these claims.

Judgment should be rendered upon the several claims enumerated in the submission in favor of the defendant, but without costs to either party.

Lewis and Bradley, JJ., concurred.

In the first above-entitled action judgment directed for the defendant; in the others judgment directed for the defendant, without costs.


author: Adams, J.:

text:
    M. Fillmore Brown, Respondent, v. Harvey F. Remington, Appellant.

      Contract — what evidence is competent in contradiction of an agreement between attorneys as to sharing compensation.

    An action was brought by an attorney upon the theory that the plaintiff and the defendant, who was also an attorney, had rendered legal services to Mrs. Margaret Root, and that it had been verbally agreed between the plaintiff and defendant that the defendant should obtain a settlement with Mrs. Root for the services of both, and that he should pay over to the plaintiff one-half of the sum which he received upon the settlement — which was denied by the defendant.
    Upon the trial it appeared that a settlement was made between the defendant and Mrs. Root, in which he received from her the sum of §3,250, of which he, by her direction, paid to the plaintiff §500.
    The defendant offered to show by Mrs. Root that she never employed the plaintiff as her counsel; that his services were rendered as a friend, and that she had already paid him for whatever he had done; the offer was excluded.

      Held, that the evidence was admissible in aid of the defendant’s contention that he never entered into any agreement with the plaintiff to settle with Mrs. Root and to divide with him the proceeds of such settlement.
    Appeal by the defendant, Harvey E. Remington, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of. Erie on the 6th day of August, 1895, upon the verdict of a jury rendered after a trial at the Erie Circuit, and also from an order entered in said clerk’s office on the 21st day .of June, 1895, denying the defendant’s motion for a new trial made upon the minutes.

      Da/uid Ilayes, for the appellant.

      D. M. Silver, for the respondent.
   Adams, J.:

Without considering the question of whether or not the contract which is relied upon by the plaintiff for his cause of action, can be enforced, as to which there is, perhaps, some doubt Leibinger & Oehm Brewing Co. v. Ernst, 89 Hun, 156), I am clearly of the opinion that error was committed by the learned trial justice in the exclusion of certain evidence offered by-the defendant, and that such error is fatal to the plaintiff’s recovery.

The theory of the plaintiff’s action is that he and the defendant, both of whom are attorneys at law, had rendered valuable professional service for one Mrs. Margaret A. Root, in an action which she had theretofore brought in the Supreme Court to recover upon a promissory note for $10,000 against John R. Strang, as executor of the last will and testament of Collins Woodruff, deceased, and in which she was successful; that after the recovery of the amount involved in that action the plaintiff and defendant in this action entered into a verbal agreement, by the terms of which the defendant was to obtain a settlement with Mrs. Root for the services rendered by both parties, and pay over to the plaintiff an equal share of whatever sum was received by him upon such settlement. Upon the trial the plaintiff testified that the defendant entered into such an agreement with him, but his evidence was flatly contradicted by the defendant, who testified that he told the plaintiff that he would not settle with Mrs. Root for less than $1,150; that he had no objection to the plaintiff receiving a similar amount if Mrs. Root was willing to pay it, but he denies positively that he agreed to pay the plaintiff one-half of the sum ultimately to be received from Mrs. Root. It appears that subsequent to the interview between the. parties the defendant saw Mrs. Root, and that afterwards he met the plaintiff and ivas informed by him that he had been unable to obtain any settlement with her; that she refused to pay him anything for his services, and that he thought he would make out an account against her for the- same. It further appears that a settlement was ultimately made between the defendant and Mrs. Root, by which he received from her the sum of $2,250, $500 of which he thereafter, by her direction, paid over to the plaintiff.

In submitting the case to the jury the learned justice was careful to call attention to this conflicting testimony, and to say to the jury that the only question of fact for their consideration was whether or not the defendant had agreed with the plaintiff to pay to him one-half of the moneys received from Mrs. Root, and that, unless the plaintiff established such an agreement by a fair preponderance of the evidence, he was not entitled to recover in the action.

Upon the trial the defendant called as a witness Mrs. Margaret A. Root, and offered to show by her that she never employed the plaintiff to act as her counsel in the Woodruff case, but that he had volunteered his services as a friend, stating that he expected to make no charge therefor, but if after the litigation was ended she desired to make him a present she might do so, and, further, that she liad in fact paid the plaintiff for the services which he liad rendered. This offer was made in various forms and at different times; it was objected to by the plaintiff’s counsel, and the objection being sustained by the court, the defendant’s counsel duly excepted thereto. The exceptions thus taken fairly present the question hereinbefore referred to.

I am unable to see why the evidence thus excluded was not material and relevant to the issues raised by the pleadings, and particularly to the issue of fact which was finally presented to the jul7-

Some doubt has already been expressed as to whether or not the agreement in question was supported by sufficient consideration to make it valid. Precisely what the consideration was does not very clearly appear, but it is fairly inferable from the language of the charge that the learned justice was of the opinion that if the defendant did undertake to collect of Mrs. Root any claim which the plaintiff had against her for his professional services, his action in attempting to reach a settlement with her was in some sense prejudicial to the plaintiff’s rights, and that this of itself would be regarded as a sufficient consideration for the promise, but if, as a matter of fact, the plaintiff had no valid claim against Mrs. Root, if he had agreed with her to render service gratuitously, or if he had already received ample compensation for such service as he did render, it would seem that the evidence excluded would have had some direct bearing upon the question of consideration, and, therefore, upon the right of tiie plaintiff to recover in any event. However this may be, such evidence was clearly admissible in aid of the defendant’s contention, that he never entered into any agreement with the plaintiff to settle with Mrs. Root and divide with him the avails of such settlement, for if Mrs. Root had already settled with the plaintiff for his services, or if, upon the other hand, she was owing him but little therefor, as compared with the defendant’s claim for his services, it might have been argued to the jury that it was not probable that he would have insisted upon any such share of the avails of the settlement made' between Mrs. Root and the defendant, and that his contention was an afterthought. At all events, I think .the jury were entitled to have this evidence, in order that they might say to what extent it impaired the value that might otherwise attach to the testimony of the plaintiff.

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

Lewis and Bradley, JJ., concurred; Ward, L, not sitting.

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


author: Waed, J.:

text:
    Jonas J. White, Appellant, v. John Loudon and Others, Respondents.

      Vendor and, purchaser — opinion as to the value of real estate — when a fraudulent statement of fact — diligence required of a defrauded vendee.

    Mere statements as to the value oí real property made in negotiations for the sale thereof, standing alone and made without fraudulent intent, in a case where the property is equally open for examination to all, and where the party who makes the representations had no superior knowledge, and does not speak as an expert, cannot afford ground for an action against the vendor when the statements prove to he false.
    Where, however, the parties do not stand upon an equal footing as to facilities for examination, and the purchaser must, to some extent, depend upon the opinion of the seller in determining whether he will purchase, statements made by the vendor with a view to influencing and which do influence the purchaser become statements of fact; and if they are false and are intended to and do defraud the purchaser, he may recover damages from the seller.
    Where a vendee has been induced to purchase property by fraud, mere want of diligence in discovering the fraud will not deprive him of the right to rescind the contract; but he must act promply after he actually discovers the fraud.
    Appeal by tbe plaintiff, Jonas J. White, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Erie on the '27th day of April, 1894, upon the decision of the court rendered after a trial at the Erie’ Special Term.
    The action was brought to compel the specific performance of a contract for the purchase of real estate. The defendants alleged that they had been induced to enter into the contract by means of fraudulent representations made to them by the plaintiff’s agent, and they demanded that the contract be rescinded and that they recover as damages the amounts theretofore paid by them upon such contract.

      George Glvnion, for the appellant.

      George II. Frost, for the respondents.
    Present — Lewis and Bbadley, JJ.; Wabd, J., not sitting.
    Judgment affirmed on opinion of Waed, J., at Special Term.
   Tbe opinion of Ward, J., was as follows:

Waed, J.:

Tbe plaintiff resided in Buffalo, N. Y., and tbe defendants interested in tbe contract under consideration all resided at or near Altoona in tbe State of Pennsylvania, a distance of about 375 miles by tbe usual traveled route from Buffalo.

On tbe 16tb day of April, 1892, tbe plaintiff was the owner, subject to. a $10,000 mortgage, of twenty-tliree acres and a half of land situate between the northern corporate limits of the city of Buffalo and tbe southern corporate limits of the village of Tonawanda, in tbe county of Erie, N. Y., said limits being from three to four miles apart, and tbe lands situate about midway between them, being on lot 39, fronting east on Delaware avenue, and extending west across Elmwood avenue to the Military road.

Tbe plaintiff instructed one William R. Johnson, a real estate broker in Buffalo, who bad been in tbe business there a year or two, and who was familiar with tbe property and tbe lands surrounding it, to sell or syndicate tbe property, for which service Mr. Johnson was to receive $100 per acre.

About tbe sixteenth of April, aforesaid, a contract was prepared in Buffalo for tbe sale of tbe said lands at $2,300 an acre, payable in monthly payments, covering a period of fourteen months, after a payment of about $3,000 down, and at tbe end of which payments a bond and mortgage was to be given for the balance on tbe property of $10,000. The contract was all complete except the names and signatiires of the purchasers, having been signed and sealed by the plaintiff and delivered to the said Johnson. Johnson proceeded to Altoona, where he had some friends, obtained an introduction to the defendants, and had personal interviews with seven of them, and an interview with a cousin of the eighth, Mrs. Dysart, a lady defendant. None of these defendants had any knowledge of the property in question, or its surroundings, and were, therefore, obliged to rely entirely upon Johnson’s statements as to the quality,, amount, value and condition of the land and of the surrounding territory, and of the prospects as to the advance of land in the future. Johnson represented to all these parties that he was authorized as the agent of the plaintiff to sell the premises, and pointed out to them substantially its location upon a map or paper which he had,. and told them that nearly all of tlie lands in tlie vicinity and surrounding tlie premises bad been taken or bought up, and were held for higher prices than $2,300 per acre; that the premises were worth that amount per acre, and that it was low at that price. There were some variations in his statements to the several defendants, but not to any great extent, which appear in the findings of fact herein. In addition to these statements he gave most encouraging accounts of the future prospects of the territory between Buffalo and Tonawanda, and expressed the opinion that the defendants would be able to realize within a short time a handsome profit on their investments by re-syndicating it or otherwise. Tlie statements of Johnson as to the value of the property and his assertion that surrounding property was being held for higher prices than $2,300 per acre made such impressions upon the defendants that they entered into the contract, relying upon the truthfulness of the same. ITow much importance they attached to Johnson’s statements as to the future prospects does not clearly appear, but that they did rely upon tlie other statements, and without such statements would not have entered into the contract, was manifest from the evidence. Johnson returned to Buffalo with the contract signed, and the defendants, without making further investigations of importance as to the property or as to the truth of the representations made to them, made six monthly payments upon tlie contract, commencing with April 16, 1892, and ending September 16, 1892, paying in all $11,660.40.

After the September payment they began to discover that fraud had been perpetrated upon them through the representations of Johnson; they refused to make further payments, repudiated the contract for fraud, and in February following this action was commenced, setting up the contract, the amount paid thereon, the amount still due thereon, and demanding performance on the part of the defendants, or in case of their failure to perform, that the contract be foreclosed and the defendants deprived of all right and equity in the contract.

The defendants answered, alleging that they were induced to enter into the contract by means of the aforesaid representations, which they alleged to be false and fraudulent, and asked that the ■contract be rescinded and canceled for such fraud, and that they recover as damages the amount paid in by them upon the contract with interest.

The defendants had never had possession of the property or received any benefits therefrom. These issues were tried by the court at Special Term, and upon, the trial the defendants, by an instrument in writing, offered to surrender and reassign to the plaintiff all right or claim they might have under the contract to the land, and tendered the said instrument to the plaintiff, which he refused to accept.

It is strenuously contended by the learned counsel for the plaintiff that the statements of Johnson, as to the value of the land, were mere expressions of opinion, and as such cannot be considered in any sense as representations of fact. While it is true that mere statements as to the value of property in negotiations for sale, standing alone and disconnected from other statements, and not made with fraudulent intent, and where the subject of the representations is equally open to both parties for examination, and where the party making the representations has not special or superior knowledge, and is in no sense speaking as an expert, such statements do not form a ground of action; but where the parties do not stand upon equal ground, and the situation is such that the purchaser has not the same opportunity of forming an opinion as the seller, or there are circumstances 'which place the seller in a position to know the condition, quality or value of the property, over and above those enjoyed by the purchaser, and the purchaser must, to a greater or less extent, depend upon the judgment or opinion of the seller in reaching his own conclusions as to whether he will make the purchase, and the seller’s statements do not appear upon their face unreasonable, and the purchaser has not a fair and present opportunity to see for himself, and the seller knows that the purchaser relies or has reason to believe that he relies upon his statement, and the statements are made that he may rely upon them, then the statements as to the value may become statements of fact, and may be so found by the court or jury; and if such statements are false and made with the intent to defraud, and do defraud the purchaser, they vitiate the transaction into which they enter and subject the seller to damages.

In Simar v. Canaday (53 N. Y. 298) the court, speaking through Folger, J., at page 306, uses this language : The defendant contends that the representations alleged to have been made by the defendant were not such as to afford a ground for an action. It is first insisted that the statements as to the value of the lands and of the mortgages thereon w;ere mere matter of opinion and belief, and that no action can be maintained upon them if false. If they were such, no liability is created by the utterance of them ; but all statements as to value of property sold are not such; they may be under certain circumstances affirmations of fact. When known to the utterer to be untrue, if made with the intention of misleading the vendee, if he does rely upon them and is misled to his injury, they avoid the contract (Stebbins v. Eddy, 4 Mason, 414-423), and where they are fraudulently made of particulars in relation to the estate, which the vendee has not equal meaz%s of knowing, and where he is induced to forbear inquiries which he would otherwise have made and damage ensues, the party guilty of the fraud will be liable for the damage sustained” (citing several cases).

The same court, in Hickey v. Morrell (102 N. Y. 463), confirms this view, citing with approval Simar v. Ccmaday and Stebbins v. Eddy.

Nor is the case of Ellis v. Andrews (56 N. Y. 83) in conflict, as none of the exceptional circumstances in this case appeared in that.

The same remark is true of Long v. Warren (68 N. Y. 426), cited by the plaintiff’s counsel, although the authority of that case was seriously questioned in the later case of The Albany City Savings Institution v. Burdick (87 N. Y. 40, 49).

And in Schumaker v. Mather (133 N. Y. 590, 595) the Court of Appeals cited with approval, on page 595, the views quoted from Simar v. Canaday (supra), and criticised those advanced in Long v. Warren (supra).

And in Cullen v. Hernz (13 N. Y. St. Repr. 334) Judge Daniels says: “ But while it is true that for a mere opinion expressed by one person to another as to the value of property no liability would be created against the person expressing it, when it turned out that he was mistaken, still the law will not exonerate him if he resorts to that mode of expression, knowing the opinion to be unfounded, with the object of deceiving the person to whom it may be expressed to his or her prejudice.”

The fact that Johnson represented, before the execution of the contract by tbe defendants, to eacli of them, in effect, that he was familiar with the ¡property and its value, and that it was worth at least $2,300 per acre, stating to most of the witnesses that it was very low. at that price, appears overwhelmingly from the evidence, and was admitted by Johnson upon the stand. This statement of value was coupled with the further statement that all or nearly all of the land surrounding, and in the vicinity of the property, had been taken up and was held for higher prices than the $2,300 per acre, and that the property in' question was about the cheapest remaining, and the last opportunity for investment; and he went further and stated to some of the defendants that the lands so taken up embraced sirbstantially all the land along the avenues mentioned in the contract. There can be no question but what these statements as to the surrounding property were statements of fact and not matters of opinion ; and that they were relied upon by these defendants and formed a part, if not the leading inducement, in the purchase of the property.

To a person unacquainted with the locality this condition of the surrounding property would naturally have a powerful influence in determining his action; if it were true that the persons familiar with this property, and with its surroundings, had invested money to a large extent in property in the vicinity, and would not sell as low as $2,300 per acre, it would go a great ways to establish the market value of the property in question at the figure at which the defendants purchased it. So if we leave out altogether the testimony as to Johnson’s statement of value, we still have a substantial representation of facts upon which the defendants relied, and had a right to rely, in the purchase of this property.

It is true that Johnson denies these statements as to the surrounding property, but his denial can have but little weight against the concurrent testimony of seven of the defendants, and Mr. Pennock, the agent of Mrs. Dysart, to the contrary.

I will assume, therefore, that Johnson made these statements as to the surrounding property. Were they true ? I am satisfied they were not. The evidence clearly is that a great bulk of the land in the vicinity of said twenty-three and a half acres was not held for higher prices, and was not worth to exceed $1,000 or $1,200 per acre, and the preponderance of evidence is decidedly to the effect that the twenty-three and a half acres were not worth the $2,300 per acre at the time of the contract, or at any time thereafter; that $1,000 to $1,200 per acre was its fair value at the time of the sale; and I am led to the conclusion that the statement of value of the property in question, under all the circumstances, and connected with the other statements as to the surrounding property went beyond the mere expression of opinion, and amounted to an affirmation of fact.

The plaintiff’s contention at this point is that the value of all these lands was speculative; that the intrinsic value was only what they would be worth for farming purposes, and that the defendants understood that they were speculative, and, therefore, a statement as to their value was speculative, and not to be relied upon.

I cannot concur in this view. If this were so, then all lands that were not actually used for building purposes in cities or villages, or in their suburbs, and whose values depended upon the surroundings, and the probable use in the future to be made of them, might be regarded as speculative. So of all lands in the vicinity of cities, or improvements of various kinds, that are at present only used for farming purposes and not yet adapted to other purposes.

The present value of property depends rrpon what it will bring in the market, and whatever influences surround it, conditions adhere to it, or prospects attend it, that form a well-grounded belief in the minds of the public as to its value, impart a value to it. So that when a man who is familiar with real estate, as Johnson was, and engaged in the business of selling it, and assuming to have peculiar knowledge in relation to it, represents to persons, living at a great distance, who have no opportunity to examine the property or ascertain the conditions that surround it, that its value is a certain amount, it ceases to be speculative and becomes an affirmation of fact. That is, a fact based upon his knowledge and experience and judgment, all of which he is supposed to marshal together as a basis of his statement as to the value. ■

The counsel for the plaintiff, realizing the difficulty of applying the rule of caveat eiwptor to these defendants, says they might have gone to Buffalo while the negotiations were pending, as they had but a night to ride, and have seen this property for themselves. The law did not impose any such duty upon these defendants. Had tliey gone to Buffalo tbey could liave learned but little about it, unless tbey spent considerable time in the investigation of the property, its value and surroundings; and it does not lie in tbe mouth of the plaintiff to say that he is protected from the fraudulent statements of his agent upon any such hypothesis.

The defendants, situated as they were, had the right to rely upon these statements, and did rely upon them, and tliey were false. They worked an injury to the defendants. Johnson must have known they were false, or at least highly exaggerated. He assumed to state that they were true. Tie assumed to these defendants to know that they were true. If he did not know the exact facts that he represented were true (as he claimed upon the stand) he should have known it, and as he represented them to be true with a fraudulent intent as to these defendants, who had no opportunity to test their truth, his statements are as fraudulent and as actionable as though he knew they were not true.

The plaintiff’s counsel says that no doubt Mr. Johnson puffed up the lands, or engaged in some puffing, to these defendants. Under the circumstances of this case Johnson should have indulged in no puffing. If a man has a horse before him or a farm in sight which he is trying to sell, and the purchaser being present and having an opportunity to judge of the exact value of any exaggerated statement he may make, he may be pardoned perhaps in the course of trade and in the anxiety to make a good bargain for doing a little “ puffing; ” hut when he goes to a distant State and seeks persons who are entirely unacquainted with the property he seeks to sell, and who have to rely, and do rely, upon his word, he should indulge ' in no puffing,” no exaggeration, but simply tell the unvarnished truth in all particulars. Frauds of this character are entirely too common; tliey seem to increase with the growth of great cities and in the hot strife of booming localities, and they deserve condemnation whenever a clear case is established.

Finally, the plaintiff contends that, assuming the defendants’ contention to he true, they have ratified the contract, after knowledge of the fraud. The evidence leads to a different conclusion. The defendants reaped no benefit whatever from the contract, but expended over $1J,000 in the first six payments specified therein. While there was some correspondence and acts of these defendants looking to a/lesire to sell the property before they had full knowledge of the fraud perpetrated upon them, and while they were in donbt as to it, they did not sell, and they took decided action as soon as the truth was learned, and repudiated the contract and refused to perform it further.

“Where a vendee has been induced to purchase property by means of fraud on the part of the vendor, mere want of diligence in discovering the fraud does not deprive the vendee of his right to rescind because thereof. He owes the fraudulent vendor no duty of active vigilance, and if he acts promptly after actual discovery of the fraud, he has a perfect right to rescind.” (Baker v. Lever, 67 N. Y. 309 and 310, and cases there cited.)

The contract should be annulled and set aside for fraud, and the defendants should recover of the plaintiff the amount paid by them upon the contract, being $17,660.40, and the interest on the several payments that make up that sum, from the time of such payments respectively ; and defendants should also recover costs of this action.