text:
    The People of the State of New York ex rel. E. Devillo Root, as Supervisor of the Town of Addison, Respondent, v. The Board of Supervisors of the County of Steuben, Appellant. The People of the State of New York ex rel. Marcus Stowell, as Supervisor of the Town of Lindley, Respondent, v. The Board of Supervisors of the County of Steuben, Appellant.

      County contribution towa/rds town bridges — section 130 of chapter 568 of the Lems of 1890 construed.

    The true meaning of section 130 of chapter 568 of the Laws of 1890 requires a county to contribute to a town within its territory one-third part of the expense incurred in any one year of constructing, caring for, maintaining, preserving and repairing its bridges in excess of one-sixth of one per centum of the assessed valuation of such town for that year, when such expenses are incurred upon the town’s free bridges within its boundaries, as well as upon those upon the boundaries.
    The phrase “except as otherwise herein provided” in such section applies to all three of the classes therein mentioned.
    Appeal by the defendant, The Board of Supervisors of the County of Steuben, from two orders of the Supreme Court, made at the Monroe Special Term and entered respectively in the office of the clerk of the county of Steuben on the 19th day. of December, 1893, directing that a writ of peremptory mandamus issue directed to the said Board of Supervisors, requiring them to levy upon the taxable property of the county of Steuben a sum sufficient to pay its proportion of the expenses of constructing and maintaining certain free public bridges in the towns of Addison and Lindley, Steuben county, N. Y., with notice of an intention to bring up for review upon such appeal all the provisions of the said orders.

      M. Rumsey Miller, for the appellant.

      J. F. Rct/rhhurst, for the respondents. ■*
   Lewis, J.:

The highway commissioner of the town of Addison, county of Steuben, during the year preceding the 1st day of November, 1893, incurred, in the construction, care, maintenance and repair of the free public bridges within said town, expenses amounting to the sum of $7,114.62.

Tbe assessed valuation of tbe taxable property of said town for that year was $956,177. Tbe excess of tbe expenses to wbicb said town was thus subjected exceeded one-sixtli of one per centum of said assessed valuation of its taxable property by the sum of $5,521. A verified itemized statement of said expense was made by tbe commissioner of’ highways of said town showing that he had expended for a new iron bridge across the Canisteo river in the village of Addison, $6,265, and for repairs of various other bridges within the boundaries of the town, sums of money aggregating in all, including the cost of the Addison bridge, said sum of $7,114.62. An explanatory statement was at the same time presented to the said board in

words and figures following :

Assessed valuation........................... $956,177 00
■One-sixth of one per cent of valuation............ 1,593 62
Total expenses of bridges during the present year... 7,114 62
Excess of cost of bridges over one-sixth of one per cent of total valuation................. ........ 5,521 00
One-third of excess............................. 1,840 03
Steuben county debtor to town of Addison........ 1,840 03”

These statements were presented to said board with a request that they pay said town the said sum of $1,840.03. The board acted upon the claim and wholly disallowed the same, upon the ground that it was not a legal charge or claim against the county. These facts being made to appear to the court at Special Term, a peremptory writ of mandamus was directed'to .issue to said board requiring them to forthwith convene and to levy upon the taxable property of the county of Steuben a sum sufficient to pay its proportion of the expenses of the town aforesaid for the year ending November 16, 1893, to wit, the sum of $1,840.03, and that the same when collected should be paid toward the payment of such expenses ; and from the order thus granted an appeal was taken to this court.

The relator’s claim against the county is based upon the provisions of section 130, chapter 568 of the Laws of 1890.

The appellant’s contention is that this section has no application, for the reason that the expenses were incurred for bridges over •streams or other waters within the boundary lines of the town and which did not form the boundaries of the town. This is the principal question presented by this appeal, and it involves the construction of said section, which is as follows:

When town or county expense. 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 lines, not less than one-sixth part of the expenses of such construction, care, maintenance, preservation and repair.” Section 131 of said act is as follows:
“ Additional county aid. When it shall appear to the board of' supervisors of any county that any one of the towns in their county will be unreasonably burdened by erecting or repairing any necessary free bridges in such town or upon its borders, such board of supervisors may cause such sum of monpy, not exceeding $2,000 in any one year, in addition to the amounts provided for in the last preceding section, to be raised and levied upon the county to be used to pay such portion of the expenses of erecting or repairing such bridge as such board may deem proper.”

This latter section was repealed by chapter 686 of the Laws of 1892, known as the County Law; and section 63 of the latter act was substituted for the repealed section. Section 63 is as follows:

“ County and to towns for the construction and repair ofbridges.. If the board of supervisors of any county shall deem any town in. tbé county to be unreasonably burdened by its expenses for the construction and repair of its bridges, the board may cause a sum of money, not exceeding. $2,000 in any one year, to be raised by the county and paid to sucb town to aid-in defraying such expenses.”

We are of the opinion that the true meaning of the section requires a county to contribute to the town the one-third part of the excess mentioned when the expenses are incurred upon the town’s free bridges within its boundaries as well as those upon the boundaries. This is the natural and reasonable construction of the language of the section. The section says : 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 then follow the provisions as to the construction of bridges over streams forming the boundaries, except that when the whole expense in any one town for any one year * * * shall exceed one-sixth of one per cent,” etc. The phrase “ except as otherwise herein provided” manifestly applies to all three of the classes mentioned. Had it been the intention of the Legislature that it should apply only to the second and third classes it would have been incorporated into that part of the section, and not have appeared in the part of the section relating to the first class. The section refers to the bridges of the town generally, including those within as well as those upon its boundaries. There would seem to be no good reason for providing for assisting a town in the construction of bridges upon its boundaries and not for those within its lines. When building a bridge upon a boundary line between two towns the expense thereof is borne equally by the towns. A review of the legislation of the State upon this subject may aid in construing this section. At an early day, under the common law of England, the duty of repairing bridges in that country devolved upon the counties, they being regarded as for the common good and convenience of the residents of the entire county. In this State as early as 1784, chapter 52 (1 Greenl. Laws, 105), the construction and reparation of bridges was committed to town oificers. It seems to have very soon become apparent to the Legislature that requiring the towns to bear the entire expense of constructing its bridges imposed in some instances an undue burden, and as early as 1801 an act was jiassed giving to the boards of supervisors the power of assisting the towns when it was made to appear that the town was unreasonably burdened by the erection or repair of its bridges. It undoubtedly came to be known that it was difficult to obtain relief under this law, for the reason that members of boards of supervisors were, as a rule, reluctant to impose upon the taxpayers of the towns which they immediately represented the burden of assisting other towns in the construction of their bridges, and an act was accordingly passed giving to the Court of Sessions the power to review the decision of the board of supervisors in such cases.

By subdivision 4 of section 1 of chapter 482 of the Laws of 1815 counties were made absolutely liable to pay not less than one-sixth of the expenses of constructing public bridges over streams or other waters forming the boundary line of counties between the towns at such point, and if the board of supervisors deemed the bridge of general benefit tci the county, and that the payment of two-tliirds of the expense by the towns would be unjust to them, they were authorized to give additional assistance. This rule was continued in chapter 346 of the Laws of 1883 and chapter 126 of the Laws •of 1886, and then came the Highway Law of 1890 containing the section above quoted.

It will be observed that the legislation down to the time of the passage of the act of 1890 had'tended towards a more, liberal treatment of the towns which might be thus overburdened. As the •country was cleared up and became more thickly populated a more general system of bridging streams and ravines was called for by the necessities of the people. The cultivation of the land and the construction of ditches and sewers increased the volume and number •of freshets, and very frequent destruction of bridges, and thereby inci’eased the expense to the towns of maintaining them, and hence ■came from time to time the legislation looking to their relief. The Legislature very properly provided for compelling thé boards of •supervisors to pay a definite and fixed percentage of the expenses •of the towns in the construction and repair of their bridges, especi.ally in view of the well-known fact that the bridges of the county are used indiscriminately by the residents of the county.

The account prepared and presented by the commissioners was in conformity with the requirements of section 132 of the act of 1890.

It was a verified statement containing a description of tbe bridge and tbe whole expense in items incurred by tbe town during the year preceding for constructing and repairing bridges. Tbe claim, was not rejected by tbe supervisors because of any informality in tbe account. Tbe claim of tbe defendant’s counsel is that the-county was not liable in any event for any portion of tbe expense incurred.

As there was no apparent reason why tbe claim should have been rejected, a writ of peremptory mandamus was properly granted,, and tbe order appealed from should be affirmed, with costs.

Tbe same disposition should be made of the case of The People ex rel. Marcus Stowell, Supervisor, etc., v. The same defendant, as the material facts and questions involved are tbe same in both cases.

Dwight, P. J., Haight and Bkadley, JJ., concurred.

Tbe order in each case appealed from affirmed, with costs.


source: Caselaw Access Project

author: Lewis, J.:

license: Public Domain

text:
    Phebe J. Colby, Appellant, v. Edward Colby, an Infant, by George Simmons, his Guardian ad Litem, Respondent, Impleaded with Others.

      Demurrer- — prayer for one hind of relief not conclusive against other relief — agreement to convey property by will ■— how enforced in equity.

      In construing a pleading demurred to, all reasonable intendments will be indulged in support of it.
    Tbe prayer in a complaint, for relief to which the plaintiff is not entitled, does not prevent him from obtaining the relief to which he is entitled under the-allegations of his complaint.
    While an agreement to make a certain disposition of property by a last will and testament is one which, strictly speaking, is not capable of specific execution, it is still within the jurisdiction of a court of eqriity to compel what is equivalent to a specific performance of such an agreement, by requiring those to whom the legal title has descended to convey the property in accordance with the terms of such agreement, and the court will not allow this post mortem remedy to be defeated by any devise inconsistent with the agreement.
    Appeal by tbe plaintiff, Phebe J. Colby, from an interlocutory judgment of tbe Supreme Court in .favor of the defendant, Edward Colby, entered in tbe office of tbe clerk of tbe county of Cayuga on the 11th day of May, 1891, upon the decision of the court rendered after a trial at the Cayuga Special Term, sustaining the said defendant’s demurrer to the complaint, and also from the order sustaining such demurrer.

      James It. Gom, for the appellant.

      Itieh & Aiken, for the respondent.
   Lewis, J.:

The demurrer was sustained, as appears from the opinion of the trial court printed in the case, upon the grounds: First, that the complaint fails to state a cause of action; second, that there is a defect of parties, in that the personal representatives of the decedent whose will was sought to be admitted to probate are not made parties defendant.

In construing a pleading demurred to, all reasonable intendments will be indulged in for its support. (Lorillard v. Clyde, 86 N. Y. 385.)

Guided by this rule in construing this complaint, we are of the opinion that it states a cause of action, not perhaps the one that the pleader had in mind when he prepared the complaint. It states that one Lucius Ii. Colby in his lifetime was the owner and in possession of a house and lot in the city of Auburn, N. Y., and that in the month of May, 1893, he made a proposition of marriage to the plaintiff, which she accepted, and that thereupon an agreement in writing was made and subscribed by the parties, bearing date on the 20th day of May, 1893, by the terms of which it -was mutually agreed that the two should be presently married, and that the plaintiff should dive with the defendant at his residence and be a faithful and loving wife to him as long ás he should live, and if the plaintiff should survive him she should have the said premises as her own in fee simple absolute; and that in pursuance of the terms of said contract and in part performance of said agreement the said Colby executed and published his will and testament in due form of law, by which he duly devised to the plaintiff, her heirs and assigns forever, the whole of the said premises, and he agreed that he would not revoke or alter the will; that on the said twentieth day of May the parties were duly married and the plaintiff went at once to live with said Colby at bis residence aforesaid, and from that time continued to live with him as his wife, doing all things necessary for his health and comfort until he died on the 10th day of March, 1894.

That the defendants are the children, grandchildren and heirs at law of the deceased; that by the undue influence and persuasion of some of the defendants the said Colby, in the month of September, 1893, disregarding the obligations of his said ante-nuptial contract with the plaintiff, executed and published another and different will and undertook thereby to revoke the said will of May 20, 1893, with a view of defrauding the plaintiff. The complaint further alleged that the plaintiff is in the quiet possession of the premises, claiming to be the owner thereof in fee under the said contract and the will made as aforesaid in May, 1893, and judgment is demanded for the enforcement of the said ante-nuptial contract and confirmation of her title to said premises and for such other or different relief as to the court shall seem meet and proper.

The complaint in addition to the foregoing demanded judgment for the establishment and probate of the will of May 20, 1893, according to the statute in such case made and provided, and further that the will of September, 1893, be declared fraudulent and void. The latter relief was asked for under chapter 316 of the Laws of 1879, providing for the establishment and probate of wills in the Supreme Court.

The act of 1879 was repealed by sections 1866 and 1867 of the Code of Civil Procedure. (Horton v. Cantwell, 108 N. Y. 255; Anderson v. Anderson, 112 id. 104.)

The pleader did not seem to have been aware of the repeal of this act when he- prepared his complaint.

But asking for this relief to which the plaintiff was not entitled did not prevent her from obtaining other relief to which she was entitled under the allegations of her complaint.

There was a legal binding contract alleged in the complaint, made 'upon a good and sufficient consideration, which the plaintiff fully and faithfully performed upon her part; the deceased failed to perform on Iris part; he failed to vest her with the title to the property in question, and in consequence of such failure on the part of the deceased, the title to the house and lot descended to the defendants who are his heirs at law; the relief to which the plaintiff is entitled is a conveyance from these heirs of the title to the premises in fulfillment of the contract of their ancestor.

While an agreement to make a certain disposition of property by a last will is one which, strictly speaking, is not capable of a specific execution, yet it has been held to be within the jurisdiction of a court of equity to do what is equivalent to a specific performance of such an agreement, by requiring those upon whom the legal title has descended to convey the property in accordance with its terms. (3 Pars, on Cont. 405.) And the court will not allow this post mortem remedy to be defeated by any devise inconsistent with the agreement.

The making of the first will was not a complete performance of the contract on the part of the deceased. The contract provided that if the plaintiff performed the contract Upon her part she should have the fee of the premises in question. In this respect the deceased failed to perform the contract.

The relief to which the plaintiff is entitled is a conveyance of the premises from the heirs at law of the deceased.

There is no claim for damages against the estate. The personal representatives of the deceased are not, therefore, necessary parties, and then it does not appear from anything alleged in the complaint that the deceased has any personal representatives.

He left a will, but it does not appear that there was any executor appointed by the will, or that it has ever been admitted to probate.

The interlocutory judgment appealed from should be reversed and the demurrer overruled, with costs, but with leave, however, to the defendant demurring to serve an answer to the complaint within twenty days upon payment of the costs of this appeal and of the demurrer.

Dwight, P. J., Haight and Bradley, JJ., concurred.

Interlocutory judgment appealed from reversed, and the demurrer overruled, with costs, with leave to the defendant demurring to answer within twenty days upon payment of the costs of the demurrer and of this appeal.


text:
    Louis Goodman, Respondent, v. James G. Snow, Appellant.

      Debtor and creditor —payment, how applied.

    Where a payment is made by a debtor to a person holding a .judgment against him, to whom he is also 'indebted upon an open account, with directions as to the indebtedness upon which such payment should be appplied, it is the duty of the person receiving the payment to apply the same as directed by the debtor.
    Appeal by the defendant, James G. Snow, from an order of the County Court of Orleans county, entered in the office of the clerk of the county of Orleans on the 2d day of March, 1894, denying the defendant’s motion to set aside the execution issued on the judgment rendered in the action.

      John U. White, for the appellant.

      G. J. Ghuroh, for the respondent.
   Lewis, J.:

The appellant Snow, on the 11th day of December, 1891, confessed á judgment in a Justice’s Court of Orleans county in favor of the plaintiff for $101, damages and costs; a transcript thereof was duly filed and judgment docketed in the Orleans county clerk’s office upon that day.

On the 24th day of July, 1893, the plaintiff caused an execution to be issued out of said Obunty Court to the sheriff of the county, commanding him to collect of the defendant in said execution the amount of said judgment besides his fees, etc. '

The defendant, upon his affidavit stating that he had paid the judgment in full before the execution was issued, moved the County Court for an order setting the execution aside. An oral examination of the parties and their witnesses was had lipón the hearing of the motion, and an- order was made denying the motion, from which this appeal was taken.

The indebtedness for which the judgment was confessed consisted of a bill of goods of $100, $44.75 of which was for goods sold to the defendant, and the balance, $55.25, was for goods sold to the defendant’s wife as guardian of an infant, Frank Snow.

The defendant claims that it was established by the evidence that there was paid by his wife upon the judgment $55.25 on the day it was entered, being the amount of the bill against her, and that the balance of the judgment was paid by him soon thereafter. Both of these payments are controverted by the plaintiff.

The learned county judge states in his opinion printed in the case that lie found it exceedingly difficult to arrive at any conclusion upon these disputed questions. After an examination of the evidence we are not surprised at his embarrassment. There are so many errors and contradictions in the accounts and vouchers produced in evidence, and in the oral testimony of the parties and their witnesses, that it is very difficult to determine what the real facts are.

' The defendant introduced in evidence a receipt signed by the plaintiff, a copy of which is as follows:

“Albion, Deo. 11, 1891.
“ Received of Matilda Snow, Guard, fifty-five in full of Frank Snow’s account.
“$55.25. (Signed) LOUIS GOODMAN.”

The defendant claims that the amount mentioned in this receipt was paid to the plaintiff on the day that the receipt bears date, which was the day judgment was entered. He sought to sustain this contention by the evidence of his wife and himself. The plaintiff, on the other hand, gave evidence tending to show that there was in fact nothing paid him on that day, but.at the request of Mrs. Snow he gave her the receipt as a voucher to be used by her in settling her guardian’s account, and that he consented to give the receipt for the reason that the amount of the guardian’s account had been included in and secured by the judgment against the husband. There was evidence tending to sustain the contention of the respective parties.

The county judge, after hearing the evidence and examining all of the facts, found with the plaintiff upon this question, and we do not think his finding in that respect should be disturbed. But we cannot concur in his conclusion that the entire judgment is unpaid. It is conceded by the plaintiff that there was paid to him by or bn behalf of the defendant the sum of fifty dollars on the 30th day of January, 1892. Mrs. Snow testified that she paid this money on that day, and that she told the plaintiff to apply it on the judgment against her husband.

The defendant testified that he had made arrangements to have the money paid, and understood that his wife paid it. The plaintiff testified that the money was paid to him; it was his recollection that the defendant paid it personally, and that he said to the plaintiff when he paid it: ££ That makes me owe you only fifty dollars.”

He testified, upon his cross-examination, that he understood Mr. Snow when he paid the fifty dollars to mean that there was left only fifty dollars unpaid upon the judgment. Plaintiff gave a receipt for the money, reading as follows:

££ Albion, Jan. 30, 1891.
“Uec’d of James Snow fifty dollars to apply on act. *
“ $50. * LOUIS GOODMAN.”

The county judge concluded that this payment was intended to apply upon the account because the receipt so stated.

An examination of the plaintiff’s account, which is printed in the record, shows that at the date of the receipt the defendant was only owing the plaintiff twelve dollars and seventy-five cents in addition to the amount represented by the judgment.

The defendant, as appears from the plaintiff’s account, continued thereafter to purchase goods of the plaintiff. If the payment of fifty dollars was intended to be applied upon the account the defendant was making an advance payment, which was entirely inconsistent with his custom, for it quite clearly appears from the evidence that he was exceedingly dilatory in making payments upon his indebtedness to the plaintiff.

There was a certified copy of the execution presented upon the argument of this appeal. Upon it appeared two indorsements purporting to be made by the plaintiff.

The first indorsement ,is as follows:

“ There was paid on the within judgment thirty-seven and dollars June 28, 1892, which amount shall be credited on the within execution as of that date. July 25, 1893.
£f (Signed) LOUIS GOODMAN.”

The other indorsement was as follows:

“The indorsement below of $37.25 as jiaid June 28, 1892, should be $38.50 paid January 30, 1892, which amount of $38.50 should be herein as of January 30, 1892.
“■ (Signed) LOUIS GOODMAN.”

The errors in the dates and the amounts of these indorsements are in keeping with other numerous errors in the accounts and papers presented upon the trial. It is apparent how the plaintiff arrived at the amount of the first indorsement, thirty-seven dollars and twenty-five cents. The items of his accounts against the defendant between the date of the confession of judgment and the payment of the fifty dollars amounted to the sum of twelve dollars and seventy-five cents as heretofore stated.

Instead of indorsing on the judgment the entire fifty dollars, the_ plaintiff manifestly deducted from that sum the amount of his account against the defendant, and credited him upon the judgment only the sum of thirty-seven dollars and twenty-five cents.

How the amount of the second indorsement of thirty-eight dollars and fifty cents was arrived at does not appear from anything contained in the record.

The defendant having directed how the payment of the fifty dollars should be applied, it was the duty of the plaintiff to make the application as directed. The indorsement of fifty dollars should be made upon the execution as of the date of its payment and the execution allowed to remain in the hands of the sheriff for the collection of the balance unpaid, and the order appealed from should be modified in that regard as suggested, and as so modified affirmed, but without costs of this apjieal to either party.

Dwight, P. J., Haight and Bradley, JJ., concurred.

Order modified by deducting from the face of the execution as of January 30, 1892, the sum of fifty dollars, and as so modified affirmed, without costs of this appeal to either party.


text:
    George W. Steitz, Appellant, v. Mary C. Priddis and Others, as Executors, etc., of Mary J. Scott, Deceased, Respondents.

      Claims withheld during the life and presented after the death of the alleged debtor.

    Claims withheld during the life of an alleged debtor, and sought to be enforced when death has silenced his icnowledge and explanation, are always to be carefully scrutinized and admitted only upon very satisfactory proof; and when it further appears that a subsequent dealing existed in which the pretended creditor was, to some extent, a debtor, never once presenting his claim in reduction of his debt, the weight of suspicion becomes very great and justifies a demand for distinct and definite proof, and the clearest indication of honesty and fairness.
    Appeal by the plaintiff, George "W. Steitz, from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Monroe on the 8th day of July, 1893, denying the plaintiffs motion to set aside the referee’s report and for a new trial, and granting the defendants’ motion to confirm the report of the referee.

      James S. Garloelc, for the appellant.

      Wilbur F. Osborn, for the respondents.
   Lewis, J.:

This is a proceeding under the statute against the executors of the estate of Mary J. Scott to recover upon a promissory note bearing date May 11, 1886, made by the testatrix for the sum of $115, payable to the order of the plaintiff three months after date, at the Elower City National Bank, Rochester.

The testatrix died February Y, 1889. The defendants are the executors of her will. The plaintiff formally presented the claim to the defendants on May 1, 1891. It was rejected. The claim was duly referred under the statute. The referee reported that the note was settled and paid prior to the death of the testatrix, and that the defendants were entitled to a judgment dismissing the plaintiff’s complaint. The referee’s report was duly confirmed. No question was raised, upon the trial, as to the making and delivery of the note.

The plaintiff relied, to sustain his claim, upon the presumption of non-payment arising from his having possession of the note.

The referee found, as facts, to which no exceptions were taken by the plaintiff, that after the maturity of the note in suit, and on January 5, 1887, the testatrix sold and conveyed to the plaintiff some real estate in the city of Rochester for the nominal consideration expressed in the deed of one dollar.

The conveyance was subject to a mortgage of $7,500 given by the testatrix to the Mechanics’ Savings Bank, which the plaintiff assumed and agreed to pay, with interest, from December 1, .1386.

The plaintiff executed and delivered to the testatrix, as a part of the purchase price of said premises, three promissory notes of $500 each, and one of $400, payable to the order of the testatrix at the Flower City National Bank of Rochester, maturing in three, six, nine and twelve months from their respective dates, with interest at five per cent. On said fifth day of January the plaintiff made and delivered to the testatrix a due bill for $100, to be paid to the plaintiff in case a tax upon the property was made a general tax of the city. The note in suit was never presented to the bank at which it was made payable for payment, neither was it ever discounted.

The testatrix, on September 8, 1886, gave to the plaintiff her note for sixty dollars ; this note was merged in a larger one, which latter note was paid on the day of the real estate conveyance, by being applied on the purchase price of the property.

The testatrix procured the three $500 notes mentioned to be discounted, for the reason that she needed the money to use.

The referee also found that in the. latter part of 1885 or the forepart of 1886 the testatrix settled and paid a note held by the plaintiff; that the plaintiff did not surrender the note for the reason that he did not have it with him at the time, but promised to mail it to the testatrix. This was not the note in suit.

The referee did not find what consideration the plaintiff paid for the real estate’purchased of the testatrix. He did find, however, that about three years after the plaintiff purchased the property he sold the south half of it for the sum of $10,000.

There was some evidence tending to show that the consideration that the plaintiff agreed to pay for the property was $13,000.

From these facts the referee found that the note was paid during the lifetime of the testatrix, and his conclusion, we think, was fully sustained by the evidence.

The note in suit was over four months past due at the time of the land transaction. The note given to take up the testatrix’s note of sixty dollars was surrendered and paid by deducting the amount of it from the purchase price of the land.

It is quite improbable that the testatrix would allow the plaintiff to retain her past due note drawing six per cent interest and take his notes for a much larger sum drawing but five per cent interest.

If, as the evidence tends to show, the purchase price of the land was $13,000, there was a large balance due from the plaintiff to the testatrix after deducting from the purchase price the mortgage for $7,500 and the notes mentioned, amounting to about $2,000, and no reason is suggested by the plaintiff for such an unusual and unnatural transaction as to allow him to retain the note in question under such circumstances.

In the absence of any explanatory evidence the presumption is practically irresistible that the amount of the note, if it had not already been paid, must have been deducted from the purchase price of the” land.

There was evidence tending to show that the plaintiff, very soon after the death of the testatrix, was in need of money and applied to his grantee of the one-half of the premises for an advance payment upon the purchase price. The testatrix was entirely responsible and able to pay the note at any time during her life. She lived over two years after the conveyance of the premises mentioned to the plaintiff; the note during all this time was held by the plaintiff and was past due, and it is quite remarkable if he failed to collect either the principal or interest .during that time. The strong presumption of payment raised by the defendant’s evidence the plaintiff failed to meet.

Claims presented after death of one of the parties to the transaction call for careful scrutiny.

The following wholesome rule was laid down in Kearney v. McKeon (85 N. Y. 139) for the guidance of courts in such cases: “ Claims withheld during the life of an alleged debtor, and sought to be enforced when death has silenced his knowledge and explanation, are always to be carefully scrutinized and admitted only upon very satisfactory proof, and when it further appears that a subsequent dealing existed in which the pretended creditor was, to some extent, a debtor, never once presenting his claims, in reduction of his debt, the weight of suspicion becomes very great and justifies a demand for distinct and definite proof, and the clearest indication of honesty and fairness.”

The orders appealed from should be affirmed, with costs.

Dwight, P. J., Haight and Bradley, JJ., concurred.

Orders appealed from affirmed, with costs.


text:
    DeWitt C. LeFevre, as Surviving Partner, etc., of C. V. B. Barse & Co., Respondent, v. Charles W. Phillips, Appellant, Impleaded with Others.

      Judgment, improperly indexed, not a lien — execution on a judgment against a deceased debtor ■— leave to iqsue an execution — issuing and return of execution a condition precedent to a creditor’s action — exceptions in equity to the rule.

    If a county clerk omits to properly index a judgment as against one of two judgment debtors, tlie judgment does not become a lien upon the real estate of such judgment debtor.
    A judgment which never became a lien upon the real property of a judgment debtor, by reason of the failure of the county clerk to properly index the same against him, does not come within the provisions of section 1380 of the Code of Civil Procedure allowing an execution to issue against the property of a deceased judgment debtor, within one year after his decease, with the leave of the court.
    It is a general rule, in actions brought by creditors to set aside conveyances of a. judgment debtor for fraud, that an execution must be issued and returned unsatisfied in whole or in part before the action can be maintained.
    Where it is alleged that a judgment debtor has transferred his property in fraud of his creditors, before the recovery of the judgment, the court may assume for the purposes of deciding a motion for leave to issue an execution that the claim of fraudulent transfer was well founded, and grant the motion, notwithstanding the fact that the judgment was not in fact a lien upon the property, but no such presumption can be indulged in when the, judgment not only was not, but could not be, a lien upon the debtor’s property.
    The rule requiring the issuing and return of an execution, as a condition precedent to the maintenance of a creditor’s action, is not of universal application, and does not deny to a party the interposition of the equity powers of the court, when the situation is such as to render impossible the aid of a court of law, to there take the preliminary steps to produce what ordinarily may be treated as the condition precedent to the application for equitable relief.

      Appeal by the defendant, Charles W. Phillips from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Cattaraugus on the 24th day of April, 1893, upon the decisión of the court, rendered after a trial at the Erie Special Term, overruling the defendant’s demurrer to the complaint, and also from an order entered in said clerk’s office on the 24th day of April, 1893, overruling said demurrer.

      James H. Wa/ring, for the appellant.

      Charles 8. Carry, for the respondent.
   Lewis, J.:

It is alleged in the complaint that the plaintiff recovered a judgment against one John F. Good and another for $2,642.50 on the 10th day of May, 1886; that the judgment roll in said action was duly filed in the clerk’s office of the county of Cattaraugus on said day; that it still remains unpaid and unsatisfied in full; that the county clerk of the county in docketing said judgment omitted to index the same against said defendant John F. Good, and that by reason of such omission said judgment did not appear on said docket on what is called the Good Combination,” and, therefore, the judgment did not become a lien upon the real property of the defendant Good.

That in the year 1891 the said Good died intestate, leaving no personal property of any description. That at the time of the recovery of said judgment he was the owner of valuable real estate in the county of Cattaraugus of the value of several thousand dollars ; after the recovery of said judgment, and on the 1st day of December, 1890, Good executed and delivered to the defendant Charles W. Phillips a certain instrument in writing purporting to convey to said Phillips, in consideration of the sum of $300, said real estate; said deed was duly recorded in the proper clerk’s office.

That said deed was delivered to said Phillips for the purpose of securing the repayment to him of said sum of $300, with interest, on an agreement on the part of said Phillips with Good that on the repayment of said sum he would reconvey the lands to Good. That Phillips did not purchase and become the grantee of said lands for a valuable consideration and without notice of plaintiff’s judgment, but, on the contrary, up to the time of the death of said Good he held said instrument of conveyance and only assumed to hold the same as security for the payment of said money and as, in effect, a mortgage thereon. ■ , .

That after the death of said Good, Phillips, for the first time, conceived the fraudulent purpose and design of assuming to hold under said conveyance the absolute title to said lands as the bona fide purchaser thereof free and discharged from said judgment.

That said Phillips knew of the existence of plaintiff’s judgment, and that his claim as aforesaid, since the death of Good, is made with the fraudulent intent on his part to hinder, delay and defraud the creditors of Good, and particularly the plaintiff.

That said instrument of conveyance in connection with the record of said judgment is a cloud upon the title of said lands and an obstruction to the collection 'of the judgment.

That at the time of said transaction, said Good was indebted to divers persons in large sums of money and was unable to pay his debts, as said Phillips well knew, and that said defendant claims that the plaintiff’s judgment is not and ought not to be a lien upon the premises by reason of the omission of the clerk to index the same as against said Good, and claims that he is a bona fide purchaser thereof, when in truth and in fact he is not such and has not in any manner been prejudiced by reason of the omission of the clerk to properly index the judgment.

Judgment was demanded against the defendant that plaintiff’s judgment be adjudged to be a lien upon the land described superior to all the liens, rights, titles and equities of the defendant, and that the clerk’s docket be amended nunc pro tunc by indexing and docketing the same against said Good, and that the conveyance to the said defendant be set aside or adjudged to be subordinate and subject to the lien of plaintiff’s said judgment, and that the land be sold and the proceeds of the sale applied to the payment of plaintiff’s judgment and the surplus, if any, deposited with the treasurer of the county of Cattaraugus to the credit of the action, and that the plaintiff have judgment for such other or further relief as the court shall deem just.

The defendant demurred to the complaint on-the grounds: First. “ That there is a defect of parties defendant, in that the clerk of this court * * * is not a defendant ; and, second, that the said complaint ■ does not state facts sufficient to constitute a cause of action.” The demurrer was overruled.

The only question presented by this appeal which merits examination is whether the issuing and return of an execution unsatisfied in whole or in part against the judgment debtor, Good, was an indispensable prerequisite to the right to maintain the action.

By the omission of the clerk to properly index the judgment as against Good it did not become a lien upon the defendant’s real estate. (§ 1216, Code Civ. Proc.)

The judgment debtor having died after the entry of judgment, a general execution against his property could not be issued. (§ 1319, Code Civ. Proc.)

It is provided by section 1380 of the Code of Civil Procedure that after the expiration of one year from the death of a party against whom'a final judgment for a sum of money, or a judgment directing the paymént of a sum of money, is rendered, the judgment may be enforced by execution against any property upon which it is a lien with like effect as if the judgment debtor was living, but such an execution shall not be issued unless an order granting leave to issue it is procured from the court from which the execution is to be issued and a decree to the same effect is procured from a Surrogate’s Court which has duly granted letters testamentary, etc.

This judgment is not within the provisions of this section, for, as stated, it never became a lien upon the judgment debtor’s property.

It is a general rule that in actions brought by creditors to set aside conveyances of a judgment debtor for fraud that an execution must be issued and returned unsatisfied, in whole or in part, before án action can be maintained.

It may be observed that in this action it is not claimed that the conveyance was made with intent to defraud the creditors of the judgment debtor. The good faith of Good in giving the deed and the motives of the appellant in receiving it are not in any respect assailed or questioned.

Neither of them, as far as appears from the complaint, was aware of the omission of the clerk to properly index the judgment as against Good". Good, not knowing at the time of executing the conveyance to Phillips that the judgment was not properly indexed as against him, would not have had any fraudulent intent in giving the deed as against the plaintiff’s judgment.

No fraud is charged against the appellant during the lifetime of Good. It is alleged that he first conceived the idea of claiming the instrument was a conveyance of the fee of the land after Good’s death; therein consisted the fraud which is charged against him in the complaint.

While it is stated generally in the complaint that Phillips knew ■of plaintiff’s judgment, it is not alleged that he knew of it at the time of receiving the deed, so that the only relief, probably, which the plaintiff could have would be to have the deed declared a mortgage security only for the indebtedness of $300.

Whether this action comes within the provisions of section 1871 of the Code, which provides that where an execution against the property of a judgment debtor issued out of a court of record has been returned wholly or partly unsatisfied, the creditor may maintain an action against the judgment debtor and any other person to compel the discovery of anything in action, or other property belonging to the judgment debtor, may not be free from doubt.

But if it be assumed that it does, is not this an exception to the rule that to maintain such an action an execution must be first issued •and returned unsatisfied ?

The judgment debtor having died after the entry of judgment, a general execution against his property could not be issued. (§ 1379, Code Civ. Proc.)

Had this judgment been a lien upon the defendant’s property, an ■execution might have been issued after obtaining an order from the court granting the judgment and a decree of the proper Surrogate’s Court consenting thereto. The plaintiff could not obtain such relief because of the fact that his judgment was not a lien upon the property of the judgment debtor.

It was held in The Matter of Holmes (42 N. Y. St. Repr. 641; S. C., 131 N. Y. 80), where it was alleged that the judgment debtor had transferred his property in fraud of his creditors before the recovery of the judgment, that the court might assume, for the purposes of deciding a motion for leave to issue execution, that the claim of fraudulent transfer was well founded and grant the motion, notwithstanding the judgment was not in fact a lien on the property, but no such assumption should be indulged in here, for concededly the judgment was not and could not be a lien upon the debtor’s property.

It was held in Nat. T. Bank v. Wetmore (124 N. Y. 241) that the rule requiring the issuing and return of ar execution as a condition precedent for the maintaining of a creditor’s action was not of universal application.

The opinion of the court, prepared by Bradley, J., discusses the reasons and authorities for the general rule requiring the issuing and returning of the execution in such cases, and concludes that it is not so universal in its application as to deny to a party the interposition of the equity powers of the court when the situation is such as to render impossible the aid of a court of law, to there take the preliminary steps to produce what ordinarily may be treated as the condition precedent to the application for equitable relief.

"We incline to the opinion that this case presents an exception to the general rule mentioned, and that the plaintiff, under the allegations of his complaint, was entitled to the relief asked for, and the order and interlocutory judgment appealed from should, therefore, be affirmed, with leave to the defendant to serve an answer within twenty days, on payment of the costs of the demurrer and of this appeal.

Dwight, P. J., Haight and Bradley, JJ., concurred.

Interlocutory judgment appealed from affirmed, with costs, with leave to defendant to withdraw demurrer and answer over within twenty days on payment of the costs of the demurrer and of this-appeal.


text:
    James Danihee, Appellant, v. John Hyatt, Respondent.

      Bfieatment — maintainable aga/inst the occupant — a husband lining with his wife on ■ her land is not an occupant.

    Where a husband and wife both live on premises which have been conveyed to the wife, the purchase price of which she has paid out of her own money, the wife is the actual occupant of the property, and the proper party defendant in an action of ejectment in regard to such property, and the bare fact of their residing in the same dwelling does not make the husband either a sole or joint occupant.
    When premises are actually occupied, an action of ejectment must be brought against the occupant, and such action cannot be maintained against a person who is not in the occupation of the premises in dispute, and Who does not claim to be either the owner or entitled to the possession thereof.
    ' Appeal by tbe plaintiff, James Danihee, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Cattaraugus on the 9th day of April, 1894, upon the report of a referee dismissing the plaintiff’s complaint upon the merits.

      William H. Henderson, for the appellant.

      Inmam, & Gole, for the respondent.
   Lewis, J.:

This is an action of ejectment brought to recover a small triangular piece of land in the village of Salamanca. It has been twice tried before a referee, and resulted each time in a judgment dismissing the plaintiff’s complaint.

The plaintiff and the wife of the defendant are owners and occupants of adjoining village lots, obtaining their title from a common grantor, each claiming to own the premises in dispute. The wife of the defendant, when she became the owner of her premises, took possession of the piece in dispute, graded and prepared the same as a driveway to a barn upon her lot, and continued to occupy the same as a part of her premises down to the time of the commencement of this action.

The plaintiff, after obtaining title to his lot, caused a survey thereof to be made, which, as he claimed, showed that the premises in dispute were a part of his lot, and he thereupon caused to be erected upon the line between his and Mrs. Hyatt’s lot, as run by the surveyor, a fence, which the defendant at once removed. The plaintiff again attempted to take possession of the premises by placing firewood thereon, which the defendant at once removed. The defendant and his wife placed a wagon upon the land in dispute and fastened it to a post by means of a chain, and this action was thereupon commenced.

We held upon the first appeal (68 Hun, 255) that the evidence, as then presented, established that the defendant had assumed to exercise such dominion over the premises to the exclusion of the rights of the plaintiff, and had taken actual and ostensible possession of the land, which he had maintained down to the time of the commencement of the action, all of which he had apparently done upon his own responsibility, and that under the facts as they then appeared it was error to dismiss the plaintiff’s complaint without a finding and decision adverse to him on the issue of title made by the pleadings. The action went back for trial before another referee. He found the title to the land in dispute to be in the plaintiff, but directed judgment dismissing the plaintiff’s complaint on the ground that the plaintiff had failed to show the defendant in possession of the land or that he had claimed any title or interest therein, and from the judgment entered .upon the report this appeal was taken.

The evidence, as presented upon this appeal, is materially different from that upon the first appeal. There is now evidence tending to show, and the refei’ee has found, that Honora Hyatt, the wife of the defendant, became the owner of her household premises in the year 1882, and that she entered into possession thereof and has ever since actually occupied the same, including the piece in dispute; that neither the plaintiff nor his immediate assignor was ever in the actual possession of the disputed land or any part thereof; that the plaintiff knew when he commenced his action that Honora Hyatt was the actual occupant of the land in dispute, claiming to be the sole and exclusive owner thereof; and that all that the defendant did in removing the fence and the wood, and in attempting to hold possession of the premises, was done by him at the request and under the direction of, and for his wife, and not on his own account.

The defendant was called as a witness and testified : I told him, {the plaintiff) the woman was not going to let him get possession that way, and that I had tom the fence down. * * * I went out and told him the woman did not want any post holes dug there, and would not have any. My wife was in the house, but came to the door, and she saw what was going on. * * * My wife told me to go out there and tell the plaintiff: not to put any wood there, and if he did, to throw it off. I went out there. My wife went out of the front door near where they were. I told the plaintiff the woman did not want any wood there, and she told him the same thing. As they threw the wood off the wagon I threw it off the driveway. I had never at any time claimed to occupy this land, or claim any interest in it. Whatever I did was only when and as directed by my wife. My wife and I chained the wagon between the posts. I supposed that was done to keep possession; that was the idea.”

Defendant’s wife testified that she informed the plaintiff that she claimed the land in dispute; that it was her land; that she owned it and not her husband, and whatever her husband did to maintain the possession of the land was done by her direction.

'The defendant was living with his wife. She was in possession of the disputed premises, claiming that the same was included within the boundaries of her lot. Possession, under the circumstances, in a legal sense, was that of the wife and not of the defendant. (Kavanagh v. Barber, 131 N. Y. 211-213.) Where a husband and wife both live on premises which have been conveyed to the wife, who paid the consideration out of her own money, the wife is the actual occupant and the proper party defendant. The bare fact of their residing together in the same dwelling does not make the husband either sole or joint occupant. (Porter v. McGrath, 9 J. & S. 84-101; Martin v. Rector, 101 N. Y. 77.)

When the premises are actually occupied the action of ejectment must be brought against the occupant. (§ 1502, Code Civ. Proc.; Banyer v. Empie, 5 Hill, 48.)

In Rowe v. Smith (45 N. Y. 230) the wife and her husband resided together upon the wife’s land. The action was against the wife for a trespass by her cattle, which were used in connection with the real estate for the support of the family. It was held the action was properly against her alone, notwithstanding her husband and children resided with her upon the land.

In Stewart v. Patrick (68 N. Y. 450) the defendant and his wife were joint tenants. It was held that the action would have been defective without the wife as a party.

Lucas v. Johnson (8 Barb. 244-248) was an action of ejectment brought against the defendants as trustees of a'church. It was held that the church was occupied by the corporation and that the suit should have been brought against it and not against the trustees.

It appearing that the defendant was not in the occupation of the premises in dispute, and did not claim to be the owner or the person entitled to possession thereof, the referee correctly held that an action of ejectment could not be maintained against him.

It follows that the judgment apjiealed from should be affirmed.

Dwight, P. J., Haight and Bradley, JJ., concurred.

Judgment appealed from affirmed.


author: Haight, J.:

text:
    Norman M. Allen, Appellant, v. Hiram F. Henry, Respondent.

      Action on a promissory note — proof sufficient to establish that the payee is the agent of the maker.

    Upon the trial of an action brought upon a promissory note it was shown that the maker of the note delivered it to the payee, who did not pay anything therefor, and that the payee took the note and transferred it to a third person by an assignment upon the hack thereof, and did not in any manner indorse it, so that he would become liable thereon, and that such third person drew a draft for the amount of the note and delivered it to the payee, who took the draft and delivered it to the maker, who drew the money thereon.

      Meld, that the person procuring the money for the maker was his agent, or, at least, that the trial court would he justified in so finding.
    Appeal by the plaintiff, Norman M. Allen, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Cattaraugus on the 19th day of March, 1894, upon the verdict of a jury rendered by direction of the court-after a trial at the Cattaraugus Circuit dismissing the plaintiff’s complaint, and also from an order entered in said clerk’s office on the 28th day of February, 1894, denying his motion for a new trial made upon the minutes:

      William H. Henderson, for the appellant.

      Sherman, 8. Rogers, for the respondent.
   Haight, J.:

This action was brought to recover the amount of two promissory notes, one for $3,000, dated July 30,1889, and the other for $1,000, dated September 25, 1889. Inasmuch as the allegations of the complaint and the evidence given upon the trial are substantially the same in reference to each note, we shall consider that only which pertains to the first note. The instrument is as follows :

“ Gowanda, July 30, 1889.
“ On demand I promise to pay to F. Monson Three Thousand Dollars, with interest, for value received.
“$3,000.00. H. F. HENRY.”

The complaint in substance alleges in reference thereto that at the time of the making of the note Monson was the agent of the defendant, and had been such agent for some time theretofore, and continued to be such agent for some time thereafter, in the financial affairs and business of the defendant; that the defendant, at the time of making the note, desired Monson to procure for him the sum of $3,000, and, to enable him to do so, he made, executed and delivered to Monson the note in question; that he delivered the note to Monson, who received it as such agent, for the purpose and with the authority to sell and transfer it to whosoever would pay him for it the sum of $3,000. The complaint further alleges that Monson on the same day did sell, transfer and assign the note to the banking firm of N. M. Allen & Son, who were co-partners and doing business as bankers; that N. M. Allen & Son drew their draft for the sum of $3,000, upon the Seaboard National Bank of New York, payable to the order of Monson, and delivered the same to him for such note, and Monson thereupon indorsed the said draft and delivered it to the defendant, who subsequently indorsed the same and drew the money thereon.

The answer admits that from time to time before and after the making of the note Monson had been authorized to do and perform certain acts for the defendant, but denies that Monson was ever the general agent in the financial affairs of the defendant, or that he was the agent of the defendant in the transaction pertaining to the note. The answer alleges a counterclaim consisting of checks drawn by N. M. Allen & Son upon themselves, amounting in the aggregate to the sum of $28,000. Upon the trial the making of the note, was admitted and evidence was given showing its assignment to N. M. Allen & Son; that it was paid for in the manner alleged in the complaint, and that the plaintiff has succeeded to the interest of N. M. Allen & Son.

The nonsuit appears to have been ordered upon the ground that the plaintiff had failed to establish that Monson was the agent of the defendant. . It is now contended that the court erred and that the plaintiff was entitled to judgment. If the allegations of the complaint, of agency, can be treated as surplusage, -the plaintiff’s claim must be sustained. But this question we do not at this time determine.

As to whether Monson was an agent, it appears that a former action had been tried between the parties, based upon the checks set forth in the counterclaim, in which it appeared that the defendant transmitted money and drafts to Monson to take and deposit the same with Allen & Son; that he did so, procuring checks therefor which he indorsed over to the defendant, and upon that trial defendant testified that he had consulted lawyers in reference to them and was firmly convinced that they were safe and certain, and then remarked: But I suppose that Mr. Monson from the first to the last was a middleman between us. He received my money and sent it on.” It is claimed on behalf of the appellant that this admission shows that the defendant regarded Monson as his agent and that the note was transmitted to him in the same way that he had transmitted money and drafts for deposit. On behalf of the respondent it is contended that the admission only had reference to the checks and did not include the notes. But to our mind the transaction itself speaks louder than words. The facts are undisputed. The defendant drew the note and delivered it to Monson. There is no pretense that Monson paid anything therefor. Monson took the note to N. M. Allen & Son and transferred' it to the firm by an assignment upon the back thereof. He did not in any manner indorse it so as to become liable thereon. N. M. Allen & Son drew their draft for the amount upon their correspondent in New York and delivered it to Monson.. Monson took the draft and delivered it to the defendant, who drew the money thereon. The facts are very similar to those of The Commercial Bank v. Cameron (79 Hun, 63), recently considered by this court, in which it was held that the person so procuring the money for another was an agent, or, at least, that the trial court would be justified in so finding. It does not appear to us that the letter from Monson to Henry, dated September 23, 1889, contradicts or impairs the inferences to be drawn from the facts alluded to. In this letter he makes a statement of the defendant’s account up to October first. In it he charges interest on $3,000 from July thirtieth, and on $1,000 from September twenty-third, from which it is contended that the charge was made in his owm behalf, as if he was the holder of the notes. Bnt if snch is the purport of his letter, then why does he credit the defendant with three months’ interest on $28,000, and deduct the amount of interest accrued upon these notes therefrom? The $28,000 was on deposit with N. M. Allen & Son. The defendant held the firm’s checks therefor, and why should Monson deduct the interest belonging to him upon the notes from interest that had accrued and was owing from Allen & Son ?

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

Dwight, P. J., and Lewis, J., concurred ; Bradley, J., concurred in the result.

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


author: Lewis, J. :

text:
    Clement J. Weber, Respondent, v. Edward H. Butler, Appellant.

      When punitive damages may be given in an action for libel — what is not an excessive verdict.

    Upon the trial of an action brought to recover the damages resulting from an alleged libel, it was shown that the defendant published in his newspaper an article, in itself libelous, which charged the plaintiff with having been guilty of the crime of bigamy.
    The article was written by a reporter, who obtained the information in respect to the matter from the motion papers in an action for divorce filed in a county clerk’s office. The name of the defendant in that action was the same as the name of the plaintiff in the action for libel, but if the reporter had examined the motion papers with care, he would have discovered that the defendant in the divorce action was not the same person as the plaintiff in the action brought to recover damages for the libel.

      Held, that the jury was justified in finding from the evidence that, under the circumstances disclosed, it was a careless and reckless act to 'publish the article, and if they so found, they were at liberty to award the plaintiff punitive damages. ■ ,
    The verdict of a jury for $800 in favor of the plaintiff, in an action brought to recover damages for a libel, is not so excessive as to justify the appellate court in disturbing the same when the defendant published in its newspaper, having a daily circulation of over 50,000 copies, a libelous article charging the plaintiff with having been guilty of the crime of bigamy,' and where several hundred copies of such newspaper containing such article were circulated in the village in which the plaintiff resided with his wife and children, and in which he was at the time engaged in the business of a dry goods merchant.
    Appeal by tbe defendant, Edward H. Butler, from a judgment of tbe Supreme Court in favor of tbe plaintiff, entered in tbe office of tbe clerk of tbe county of Orleans on tbe 21st day of February, 1894, upon the verdict of a jury rendered after a trial at tbe Orleans Circuit, and also from an order entered in said clerk’s office on tbe 20th day of February, 1894, denying tbe defendant’s motion for a new trial made upon the minutes, with notice of an intention to bring up for review on such appeal said judgment and order.

      Irving Browne and AdeTbert Moot, for the appellant.

      Filldns db Oox, for tbe respondent.
   Lewis, J. :

This is an action of libel brought by the plaintiff, a resident of tbe village of Medina, Orleans, county, against the defendant as tbe proprietor and publisher of tbe Buffalo Evening News, a daily newspaper published in tbe city of Buffalo, for publishing in said paper an article which charged tbe plaintiff with having been guilty of tbe crime of bigamy.

The article was concededly libelous, and it was unquestionably published of and concerning the plaintiff; the reporter for the paper who wrote the article and caused it to be published so testified, and an article subsequently published by the defendant in the paper, in substance, so stated.

An action had theretofore been commenced in the Supreme Court, county of Erie, by a Mrs. Louisa Weber against Clem Weber, to annul a marriage between the parties on the ground that, at the time of their said marriage, the defendant had a wife, who was then living, and which prior marriage was, at the time, in full force.

A motion had been made in the divorce action, founded upon-the pleadings in said action and affidavits, for a commission to take the testimony of a foreign witness, and the papers were on file in the clerk’s office.

The defendant’s reporter, learning of said motion, examined said motion papers sufficiently to ascertain the- nature of the action and that the defendant’s name was Clem Weber, and he having known the plaintiff when he was a resident of Buffalo, and knowing him by the name of Clem Weber, he assumed that the defendant in the divorce action and the plaintiff were one and the same person, and he wrote and caused to be published the libelous article.

Had he examined the motion papers with the care which the gravity of the charge made against the plaintiff in the article demanded, he would have easily discovered that the defendant in the divorce action-was not the plaintiff; he would have learned from the papers that the parties to the divorce action were married at Sacketts Harbor, New York, in the year 1889, and resided there till 1891, when the defendant abandoned the plaintiff and left- the State, and had never returned thereto to live; had he read the papers with any care 'he would not have fallen into the error he did.

The jury were justified in finding from the evidence that it was a careless and reckless act to publish the article under the circumstances disclosed, and if they so found they were at liberty to award punitive damages. (Holmes v. Jones, 121 N. Y. 461; Warner v. P. P. Co., 132 id. 181.)

This case is distinguishable from the case of Hanson v. Globe Newspaper Co. (159 Mass. 293), to which our attention is called in the appellant’s brief; in that case the trial court found that the article complained of was not publishéd of or concerning the plaintiff, neither did it find 'that the publisher was guilty of carelessness or negligence in publishing the article; not So here.

We do nqt think the verdict in this case cf $800 was so excessive as to justify us in disturbing it. Tbe defendant’s paper had, at the time the article was published, a daily circulation of over 50,000 copies; several hundred copies were circulated in the village where the plaintiff resided with his family, consisting of a wife and children, and where he was engaged at the time in the business of a dry goods merchant. We do not find, after a careful examination of the case and the exceptions of the defendant, any good ground for disturbing the verdict.

The judgment and order appealed from should be affirmed.

Dwight, P. J., Haight and Bradley, JJ., concurred.

Judgment and order appealed from affirmed.