author: Landon, J.: Learned, P. J.:

text:
    E. WILLARD BOIES, Respondent, v. PURPLE GARDNER and Others, Defendants, SARAH BENHAM, Appellant.

      Priority of the lien of a mortgage given to the venó.’or of real properly, to secure pm’t of the purchase-price, over a mortgage of even date and time of record, the consideration of which was also used to pay for the property.

    One Boies, tlie owner of real property, conveyed tlie same to a purchaser, who gave back two mortgages of even date and time of record, one to Boies to secure a portion of the purchase-money on the premises, and the other to Benham, who advanced to the purchaser money, which was applied in payment of the purchase-price to Boies; the mortgage to Boies recited that it was given to secure payment of a portion of such purchase-money.
    In a controversy arising between Boies and Benham as to the priority of their respective mortgages:

      Held, that, in the absence of proof that Boies, as the vendor of the premises, had waived his right to the priority which his vendor’s lien gave him for the purchase-money, so as to admit the other mortgage to an equality of lien with his own, that the lien of Boies was entitled to priority.
    That the fact that the mortgage to Benham was also given to secure a portion of the purchase-money did not entitle it to equality of lien with the Boies mortgage, as the land came from the plaintiff, and until the purchase-price was secured to him his grantee had nothing to mortgage to others.
    That Benham, having advanced part of the purchase-price, was, however, equitably entitled to whatever security the land could afford to him in preference to judgment liens, dower interests or mortgages held by third persons who had advanced nothing towards vesting the legal title to the land in the mortgagor.
    Appeal by the defendant, Sarah Benham, from a judgment of the Supreme Court, entered upon the report of a referee in favor of the plaintiff, in the office of the clerk of the county of Schoharie on the 8th day of December, 1887, adjudging in an action of foreclosure that the plaintiff’s mortgage was a first lien upon the premises covered thereby and a lien prior to the mortgage lien thereon held by the defendant, Sarah Benham.
    The complaint was in foreclosure. The plaintiff and the defendant Benham each held a mortgage given by the defendant Gardner, on the 11th of March, 1881, upon premises which the plaintiff on the same day conveyed to Gardner. The price of the premises was $1,800, $100 dollars of which Gardner had paid to the plaintiff. Gardner borrowed $1,000 of defendant Benham and paid $900 of it to plaintiff, and gave plaintiff a mortgage for $800, and at the same time gave a mortgage to Benliam for the $1,000. The transactions took place at the same time and place, and it was agreed that the two mortgages should be recorded at the same time and they were both so recorded. The mortgage to the plaintiff recited that it was given to secure payment of a portion of the purchase-money ; the mortgage to Benham did not so recite. The conversation of the parties at the time of the execution of the mortgages was given in evidence, the contention of the defendant Benham being that it was agreed that her mortgage should be of equal lien with that of the plaintiff. The referee finds that the mortgages were of equal date, that both were given for the purchase-money, and both by agreement recorded of equal date, but does not find that it was agreed that they should be of equal lien, and does find that the plaintiff never parted or intended to part with his equitable lien upon said premises for the purchase-money, and thereupon found that the plaintiff’s mortgage had the priority of hen. The defendant Benliam appealed.

      G. L. Panforth, for the appellant.

      Hiller & Palmer, for the respondent.
   Landon, J.:

The burden rested upon the defendant Benham to show that the plaintiff, as vendor of the premises and the holder of a mortgage of equal date and record of her own, did, either by act or omission, so far waive the priority which his vendor’s lien gave him for the purchase-money as to admit the defendant’s mortgage to an equality of lien with his own. The vendor’s lien for the purchase-money is prior to any other lien which the vendee can give upon the land except by the vendee’s consent, expressly given or implied from his acts or omissions. (Dusenbury v. Hulbert, 59 N. Y., 541; Ellis v. Horrman, 90 id., 466; French v. Le Roy, 15 Week. Dig., 269.)

The. vendor’s equitable hen is waived by taking a mortgage. (Fish v. Howland, 1 Paige, 20.)

The referee has found that the plaintiff did not part with his equitable hen. Upon examination of the evidence we think the defendant did not quite make it appear that the plaintiff consented to admit her mortgage to an equality of lien with his own, and hence did not maintain the burden she assumed. The case of French v. Le Roy, above cited, was fully as strong for the defendant as is the present, but the equitable lien prevailed. The defendant urges that because the referee has found that the mortgage to her was also given for the purchase-money, that it is thus admitted to an equality with plaintiff’s mortgage in that respect, and because it stands equal in date and record, all the requisites of equality are shown. The money for which the mortgage was given to Benham was purchase-money to the amount of $900, as between Benham and the purchaser, in the sense that the purchaser could not, by agreement with third persons, give to them a hen upon the land prior to Benham’s. Benham’s equity is, in like manner and for like reasons, as superior to that which the purchaser can give to third persons as the plaintiff’s equity is superior to hers. The land comes from the plaintiff. Until the purchase-price is secured to him his grantee has nothing to mortgage to Benham. That security given, then the grantee can mortgage to Benham subject to plaintiff’s prior hen. Benham, having advanced part of the purchase-price, is equitably entitled to whatever security the land can afford him, before the judgment hens, dower right, or mortgages of third persons who have advanced nothing towards vesting the legal title to the land in the grantee, can be allowed. This is the extent to which the money lent by Benham and paid to the plaintiff becomes purchase-money. (Jackson v. Austin, 15 Johns., 477; Cunningham v. Knight, 1 Barb., 399 ; Kittle v. Van Dyck, 1 Sandf. Ch., 76.)

The judgment is affirmed, with costs'.

Learned, P. J.:

I concur in the result. But I think that plaintiff’s mortgage was a waiver of his equitable lien as vendor. (Fish v. Howland, 1 Paige, 20.) But it is not shown that he waived Ms right to priority over any other security.

Ingalls, J., not acting.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Learned, P. J.: Landon, J.

license: Public Domain

text:
    JEREMIAH BULGER, Applellant, v. ISAAC A. ROSA, Sheriff of the County of Montgomery, Respondent.

      Conveyance of firm property alleged to he fraudulent as favoring individual, as against fi/i'm creditors- — when it presents a question for the ¡wry.

    Slierlock & Bulger were merchants, carrying on business under that firm name. Sherlock conveyed all his undivided one-half interest in the real and personal property of the firm to Bulger, “subject to the payment in full of all the claims and demands * * * against the said firm of Sherlock & Bulger, which said claims and demands the said John Bulger does hereby assume and agree to pay.” Bulger thereafter conveyed said property to one Jeremiah, subject to the payment of a mortgage upon the real property. The firm was indebted to Jeremiah to the amount of about $1,700, and Bulger was indebted to him in the amount of about $1,300. These two amounts constituted the consideration for these transfers to him. The property transferred was estimated as worth about $2,000.
    In an action, brought by Jeremialrto recover a portion of this property which had been levied upon by virtue of a judgment and execution against Sherlock & Bulger:

      Held, that Jeremiah was entitled to have the question submitted to the jury whether the transfer to Bulger had not been made only for the purpose and with the intent of enabling him to pay first what the firm owed Jeremiah and then what it owed other creditors.

      Burhans v. Kelly (17 N. Y. St. Rep., 552); Calkin v. Conner (18 N. Y. Weekly Dig., 24) distinguished.
    That the court was not justified in holding, as matter of law, that the conveyance to John Bulger was fraudulent.
    That if the jury should have found that the debt owing Jeremiah from Bulger, individually, was a part of the consideration of the transfer, the firm creditors could only be injured to the extent to which the firm property transferred to Bulger was in excess of the amount of the indebtedness of the firm to him.
    That if, in fact, the property transferred to Jeremiah was not of a value in excess of the debt owing to him by the firm, the firm creditors were not injured, although Jeremiah might have given up his claim against Bulger, individually, in order to induce him to pay the firm debt with the firm property. (Landon, J., dissenting.)
    Appeal by tbe plaintiff from a judgment of tbe Supreme Court, rendered at tbe Montgomery Circuit, dismissing the complaint on tbe merits after a tidal before tbe court and a jury, which judgment was entered in tbe office of tlie clerk of tbe county of Montgomery on tbe 30th day of June, 1888, and from an order denying tbe plaintiff’s motion for a new trial made on the minutes of tbe judge, which order was entered in said clerk’s office on the 29th day of June, 1888.

      Matthew Hale and Z. S. Westbrook, for the appellant.

      N. C. Moak and Edward J. Meegan, for the respondent.
   Learned, P. J.:

This is an action of replevin, brought to recover personal property alleged to belong to plaintiff and taken by the defendant by virtue of judgments and executions against John Sherlock and J olm Bulger. On the trial the court directed a verdict for the defendant and denied a motion for a new trial, and the plaintiff appeals. John Sherlock and John Bulger were merchants under the firm name of Sherlock & Bulger. They had some real estate; their stock in trade and book accounts. By a bill of sale, dated June 15,1883, Sherlock conveyed all his undivided one-lialf .interest in all the personal property, including book accounts and dioses in action of the firm to John Bulger subject to the payment in full of all the claims and demands -x- -x- -x- against the said firm of Sherlock & Bulger, which said claims and demands the said John Bulger does hereby assume and agree to pay.” By a deed of the same date Sherlock conveyed to John Bulger the real estate subject to the mortgage thereon, which John Bulger assumed to pay. On the 16th of June, 1883, John Bulger conveyed the real estate to plaintiff, subject to said mortgage which plaintiff assumed. He also at the same time conveyed to plaintiff all the personal property which had belonged to the firm, including choses in action; and the plaintiff took possession June 18, 1883. He began to carry on business. The defendant by virtue of the aforesaid executions levied on the twenty-first. The firm was insolvent and so were each of the partners.

The firm was indebted to plaintiff to an amount of about $1,700. John Bulger was also indebted to the plaintiff to an amount of about $1,300. These two amounts constituted the consideration for these transfers to plaintiff. The stock on hand, was estimated as worth about $1,500, the equity in the real estate about $500, though it afterwards sold for $1,000. There was subsequently collected from the book accounts $160.

The plaintiff testifies, substantially, that Sherlock said he wanted to see the plaintiff paid, whether the others got their pay or not; that he would sell out the business to plaintiff that plaintiff might get his money. This remark might indicate that the transfer to John Bulger was made in order that he might secure plaintiff both what the firm owed plaintiff and what John owed plaintiff individually, or it might indicate that the transfer was made that John might pay plaintiff only what the firm owed him; and as the plaintiff was not allowed to go to the jury, he is entitled to the more favorable construction of this and of similar evidence. The jury might have found that the transfer to John was made only for the purpose and with the intenf of enabling him to pay first what the firm owed plaintiff and then what they owed other creditors. And the court refused to submit this question to the jury. If they had found that such was the intent, we cannot see that that transfer could have been held fraudulent. This seems to be settled by the reasoning of the court in Williams v. Whedon (109 N. Y., 333); Emerson v. Senter (118 U. S., 3); Crane v. Roosa (40 Hun, 455).

Several English cases are cited to us by the defendant upon this point; but it must be remembered that in England there is a bankrupt law, and, therefore, preferences by insolvents are not lawful. 'With us it is different, and preferences are lawful; .except as restricted by chapter 503, Laws of 1887; and, as the transfer by Sherlock to John Bulger was expressly made subject to the payment of all claims and demands against the firm, which claims and demands John Bulger agreed to pay, we do not see that it purported to convey anything but Sherlock’s interest in the fii-m property after the debts were paid. The court refused to submit to the jury the question whether the sale by Sherlock was with intent to hinder creditors. If made in good faith, it passed the title to John Bulger. (Stanton v. Westover, 101 N. Y., 265, Saunders v. Reilly, 105 id., 18.)

It has been several times laid down that the right of creditors to have partnership property applied to partnership debts is derivative and is a subrogation to the rights of the partner; that if the property has become the several property of a partner or of a third person the equity is extinguished. (Case v. Beauregard, 99 U. S., 119; Fitzpatrick v. Flannagan, 106 id., 648.) Hence in Saunders

v. Reilly (ut supra), it is said that, even if insolvent, all the mem. bers of a firm may sell the firm property to pay a joint debt for which they are jointly liable outside the business of the firm, and the joint creditor will obtain a good title to the firm property. In the present case, as the transfer to John Bulger was made subject to the payment of the firm debts, it may be said that the equity of Sherlock was not extinguished, and that the creditors of the firm may be subrogated thereto.

The defendant cites the case of Burhans v. Kelly (17 N. Y. S. Rep., 552) to show that Sherlock’s act was fraudulent. But in that case the trial court found fraud as a fact. So in Calkin v. Conner (18 N. Y. Week. Dig., 24), the trial court refused to submit the question of fraud to the jury. As to the conveyance to John Bulger, therefore, we do not think the court justified in holding it fraudulent as matter of law. It can hardly be urged that if John Bulger turned out this property to plaintiff in payment for what the firm owed him, the transfer would have been invalid. If the amount turned out were greater than the debt, this might indicate fraud, or a creditor might probably recover the excess. In the present case if the jury had been allowed to pass on the question, as requested by the plaintiff, they might have found that the value of the property turned out to plaintiff was substantially equal to the debt owing him from the firm.

There is evidence that the debt owing plaintiff from John Bulger, individually, was a part of the consideration. Of course, in equity, John Bulger had no right to pay his own debt with this firm property to the injury of firm creditors. But firm creditors could only be injured to the extent to which he used firm property in excess of the firm debt. If the property turned out to plaintiff was not in excess of the debt owing him by the firm, the firm creditors were not injured. The surrender by plaintiff of his claim against John Bulger did no harm to the creditors of the firm. The plaintiff might lawfully give up his claim against John Bulger, in order to induce him to pay the firm debt with the firm property. And the plaintiff had a right to have submitted to the jury the question whether the firm debts were a full and fair consideration for the property purchased.

Another question may arise, and that is, whether, if the property transferred by John Bulger to plaintiff was in excess of the debt owing him from the firm, the transfer was entirely void or only void for the excess. Wilson v. Robertson (21N. Y., 587) was a case where an assignment by partners gave the first preference to individual debts, and this was held to be void. But that was on the ground that such preference gave a benefit to the individual partners out of the firm assets before any firm creditors were paid. The provisions of the assignment must be followed or else it must be set aside. The present is not that case. John Bulger with assets of the firm has paid a firm debt. With assets of the firm he has also (on this supposition) paid an individual debt. It matters not that he did these two acts by one conveyance. The extent of the injury to the firm creditors (if any) is only the excess of the property transferred above the firm debt. No intentional fraud is proved. And in this State fraudulent intent is a question of fact, not of law. (2 R. S., 13 Y, § 4.) The rights of the firm creditors, as above shown, is a derivative right coming from the right of Sherlock. Sherlock could insist only that the excess above what the firm owed the plaintiff had been applied contrary to the terms of the transfer made by Sherlock to John. Up to the amount of the firm debt the property was applied according to the terms of his transfer.

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

In&alls, J.. concurred.

Landon, J.

(dissenting):

If the jury had been permitted to find that the intent of the transfers was, first, to pay the plaintiff the firm debt due him, and, second, the other firm creditors, in preference to the individual debt of John Bulger, they would have been permitted to find a verdict against the clear weight of the evidence. The plaintiff, as a last extremity, seeks refuge under this palpably false pretense. It should not avail him. He intended to protect not only his claim against the firm, but against the individual members of it. The whole con- • sideration is tainted by the vice of the attempt to apply firm property in satisfaction of an individual debt, and the title of the plaintiff resting upon that vice fails as against the defendant, who represents firm creditors.

I advise an affirmance of the judgment.

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


author: Learned, P. J.:

text:
    JOHN W. MATTHEWS, Respondent, v. ZEO L. MATTHEWS, Appellant.

      Divorce — reference in an action for — the court cannot set aside the referee’s report and direct him to take further evidence — it may refuse to confirm, the report — form of order of reference.

    Where a referee has been appointed, in an action brought for a divorce, “ with power to take the testimony and report the same with his findings of fact to the court,” and the referee reports in favor of the defendant, the Special Term is not authorized to set aside the report and send the case back to the referee with orders to him to take further testimony.
    An order in the form above stated is, in fact, an order of reference “ to hear and determine.”

      Bemible, that the court may, on the ground of insufficient proof, refuse to authorize the entry of a judgment for divorce, although the referee has decided that it should be granted.
    Appeal by the- defendant from a judgment decreeing that the marriage between the plaintiff and the defendant be dissolved,, directed at a Special Term held in the county of Washington, which judgment was entered on the report of a referee in the office of the clerk of the county of Clinton on the 10th day of March, 1888.

      James Averill, for the appellant.

      George Richards, for the respondent.
   Learned, P. J.:

This is an action for divorce on the ground of adultery.

The answer denies the adultery of defendant, and avers adultery of plaintiff; also denies that plaintiff has not voluntarily cohabited with defendant since the discovery. A supplemental answer sets up that the plaintiff has condoned the alleged adultery. Another supplemental answer sets up another instance of adultery on plaintiff’s part. The allegations of the answers are denied in replies.

On the stipulation of the parties an order was made appointing a referee “with power to take the testimony and report the same with his findings of fact to the court.” Testimony was taken before him and he reported that the defendant did not commit adultery as alleged.

The Special Term set aside the report and sent the case back to the referee with orders to him to take further testimony. No further testimony was given by plaintiff. Thereupon the referee made another report that the defendant did commit adultery as alleged ; that the plaintiff did not commit adultery as alleged in the several answers, and had not condoned the offense, and that plaintiff should have judgment. The Special Term confirmed the report and granted judgment.

The evil of the practice followed in this case is apparent from the fact that, by his first report, the referee found that the defendant had not committed the alleged adultery; and, by his second report, without any further evidence on plaintiff’s behalf, he found that she had. The additional evidence on the second hearing related only to plaintiff’s alleged adultery. So that we have the same referee coming to a different conclusion on the same question and upon the same- proof. A practice which permits this is not to be sanctioned.

Under the decision of McCleary v. McCleary (30 Hun, 154), we must hold that the first order of reference, though badly expressed, was, in fact, a reference to hear and determine. It was not a mere taking of testimony by consent out of court to be used on a trial. For the referee was to report his findings of fact. That gave him the power to try the questions of fact made by the issues. By section 1229 of the Code of Civil Procedure, judgment cannot be entered on the report, of course, but the report and the testimony must be presented to the court, and judgment can be granted only by the court. The court cannot set aside the report and grant a judgment in favor of the party against whom the referee has reported. (Schroeter v. Schroeter, 23 Hun, 230.)

In Ross v. Ross (31 Hun, 140), it is shown that after a trial by a referee in a divorce action there is no power in the court to direct the referee to take further proof and then review his decision and make a new report. We are not willing to hold that the court may not, on the ground of insufficient proof, refuse a judgment of divorce, when the referee has decided that it should be granted; because we suppose that the power given by section 1229 is for the protection of the public; and, therefore, that the court may say the adultery is not proved, even though the court cannot discover actual collusion. If the unsuccessful party can have a case sent back for further testimony and findings, much injustice may be done by preparing evidence to meet the emergency. It is important that, when the parties have rested and the tribunal has decided, the decision should stand. It is not clear on whose motion the cause was thus sent back. The defendant had succeeded. And yet if the plaintiff wanted a further hearing, he, at least, offered no further testimony. So that he must have relied on convincing the referee that he had come to an erroneous conclusion on the first hearing. If there had been no errors on the trial, we might be obliged to reverse the judgment and give judgment for the defendant on the first report, unless (as stated in the points) the report was sent back by consent. But, on the hearing before the referee, John Newton, the person with whom the alleged adultery of defendant was committed, was examined as a witness for plaintiff. He testified to the adultery. He was partly cross-examined by defendant and then his cross-examination was suspended on an agreement between the parties and the witness that when again called by defendant for cross-examination he would be present. He was afterwards recalled by defendant for further cross-examination and failed to appear, and it was shown that he had left the State. The defendant then moved to strike out the evidence of Newton for his failure to appear and to be cross-examined. The motion was denied and defendant excepted. , This was error. (People v. Cole, 43 N. Y., 508; Rutherford v. Holmes, 66 id., 368 ; Kissam v. Forrest, 25 Wend., 651; Price v. Wilson, 67 Barb. 9.) The testimony of this witness was of such importance that this error cannot be overlooked. The testimony of the defendant denying the alleged adultery was excluded. This may have been correct under the law as then existing. But we refer to section 831, as now amended. The notice of, appeal states that it is intended to bring up also an order refusing to punish plaintiff for non-payment of alimony. We find no sucb order, although the subject is mentioned in the opinion of the learned justice.

The judgment is reversed, referee discharged, new trial ordered, costs to abide event. The defendant to be at liberty .to take such action as she may be advised in respect to enforcing the payment of alimony.

Landón and Ingalls, JJ., concurred.

Judgment reversed, new trial granted, referee discharged, costs to abide event. Defendant to be at liberty to take such action as she may be advised as to alimony.


text:
    QUINCY A. VINAL, as Administrator, etc., of WILLIAM L. BURT, Deceased, Respondent, v. THE CONTINENTAL CONSTRUCTION AND IMPROVEMENT COMPANY, THE BOSTON, HOOSAC TUNNEL AND WESTERN RAILROAD COMPANY and THE FITCHBURG RAILROAD COMPANY, Appellants.

      Demwrrer to a complaint setting wp a written and oral contract— it admits the truth of the statement, irrespective of the competency in evidence of the oral contract— contract — right of one pm'ty to receive and retain property thereunder after refusing, because of the inability of the other pm’ty to act, to fulfill its pa/rt of the contract.

    Where a complaint speaks of a written and oral agreement and a demurrer is interposed thereto, such demurrer admits the agreement alleged in the complaint just as if it had been proved on the trial without objection by the defendant.
    Upon the issue formed by the demurrer, the court will not consider the question whether, under the rules of evidence, the plaintiff would be allowed to prove on the trial the oral agreement set up in the complaint.
    One Burt entered into a contract by which he was to receive certain railroad stock and to pay therefor a certain sum. This contract contemplated a consolidation, which was to be effected by Burt between two railroad companies, and was subsequently attempted and an agreement of consolidation made. Subsequently Burt entered into an agreement with the Continental Construction and Improvement Company, by which that company agreed to build, complete and equip the road for the new consolidated company, and to make a proper agreement with that company to that effect, in consideration of which Burt assigned to the Continental Construction and Improvement Company the aforesaid contract under which Burt was to receive the railroad stock, together with a certain subscription paper, and subsequently the Continental Construction and Improvement Company having paid the balance due upon such last-mentioned contract, received the assignment of the stock therein provided to be made. The Continental Construction and Improvement company also entered into an agreement for the construction of the road of the new consolidated company, with it.
    In an action brought by the attorney-general of the State of New York, it was adjudged that the attempted consolidation was void. The Continental Construction and Improvement Company, being deprived of the power to perform its agreement with Burt, refused to build the road, caused itself to be released from its contract and retained, and in part sold, the property acquired under its agreement with Burt.
    Burt having died, an action was brought by his administrator to recover damages against the Continental Construction and Improvement Company for an alleged breach of contract, in which judgment was rendered for the construction com pany on the ground that the decision in the action brought by the attorney-general excused it from the performance of its contract.
    Burt's administrator thereupon brought an action against the construction company and others, alleging that there had been a failure of consideration for the transfer by Burt to that company and that the company should account and restore to the plaintiff the money profits received from Burt, to the complaint in which action a demurrer was interposed.

      Held, that the claim on the part of the defendant that the parties had contracted under a mutual mistake of law, and not of fact, because the legal existence of the new consolidated corporation depended on the validity of the proceedings taken by the former corporations to consolidate, and that such proceedings were legally invalid, could not be sustained.

      Semble, that even if the decision in the action brought by the attorney-general were based upon defects existing in the execution of the papers for the consolidation, and upon improper action to that end taken by the old companies, it would have 'been based on a question of fact.

      Semble, that such would have been the case, even were such adjudication placed and determined on the inability, under the statute, of the two existing companies to consolidate.
    That, in any event, as these parties were not residents of the State of New York, and their contract, so far as appeared, was not executed in New York, that the questions relating to the laws of this State were questions of fact.
    That while everyone is presumed to know the laws of his own State, he is not presumed to know the laws of the other States in this country or of other nations.

      Carpentier v. Minturn (6 Lans., 56; Holdredge v. Webb (64 Barb. 9) distinguished.
    That the claim that the plaintiff having sued to recover damages for a breach of the contract, and having been defeated in that action, could not now maintain this action, was not sustainable, as the two actions were not inconsistent, one with the other.

      Steinbach v. Relief Fire Ins. Co. (77 N. Y., 498) distinguished.

      Appeal by the several defendants from an interlocutory judgment, entered upon a trial of the issues of law formed by the plaintiff’s complaint and by the defendants’ demurrers interposed thereto, rendered at a Special Term of the Supreme Court held in the county of Saratoga, which judgment was entered in the office of the clerk of the county of Saratoga on March 7, 1889, and overrated the demurrers of the several defendants to the complaint in this action.
    To state the facts alleged very briefly, Ames & Dexter owned all the indebtedness and a great part (substantially all) of the stock of the Boston, Hoosac Tunnel and "Western Railroad Company. On the 9th of February, 1881, they contracted with Burt, plaintiff’s intestate, to transfer to him all the stock, for which he was to pay a certain sum to them, and, also, was to make other payments of indebtedness. There are other agreements in the contract which it does not seem necessary here to specify. This contract was subsequently extended, April 9, 1881, by a supplemental contract, and again subsequently to that day.
    This contract contemplated a consolidation, which Burt intended to procure, between the Boston, Hoosac Tunnel and Western Railroad Company and other railroad companies. About April 11,1881, said Boston, Hoosac Tunnel and Western Railroad Company did attempt to make such consolidation, and an agreement of consolidation was made, the consolidated company to have the same name of Boston, Hoosac Tunnel and Western Railroad Company. On the 25th and 2Gth of May, 1881, these contracts of Burt with Ames & Dexter were worth $2,000,000, besides what Burt had paid on them. On these days Burt entered into an agreement with the Continental Construction and Improvement Company, by which that company agreed to build, complete and equip the new Boston, Hoosac Tunnel and Western Railroad Company, and to make a proper agreement with that railroad company to that effect; and in consideration thereof Burt assigned to said Continental Construction and Improvement Company the aforesaid contracts with Ames & Dexter and a certain subscription paper. Subsequently the Continental Construction Company paid Ames & Dexter the balance due them, and received from them assignments of the stock and indebtedness aforesaid. The construction company also entered into a contract for the construction of the new Boston, Hoosac Tunnel and "Western Railroad Company. Burt on his part fulfilled all his obligations under his agreement with the Continental Construction and Improvement Company during his lifetime. Neither Burt nor the said Continental Construction and Improvement Company was a citizen of this State. They made the aforesaid agreement in the belief that said new Boston, Hoosac Tunnel and Western Railroad Company was a valid consolidated company under the Laws of New York.
    In 1882 the attorney-general of New York brought an action, the result of which was that on the 16th of July, 1883, the attempted consolidation was declared void and the bonds and mortgage issued by said new company were declared void and its stock also.
    The defendant, before the 26th day of May, 1883, deprived itself of the power to perform its agreement with Burt; refused to build the road ; caused itself to be released from its contract; and has retained and in part sold the property acquired by its agreement; caused the railroad company to issue its bonds ; sold them and converted the proceeds. After the decision in the action of the attorney-general, Burt’s administrator brought an action for damages against the Continental Construction and Improvement Company on breach of contract. Judgment was rendered therein for defendant on the ground that the decision aforesaid excused said defendant from performance of the contract. The plaintiff now claims that there has been a failure of consideration for the transfer by Burt to that company; and that the company should account to and restore to plaintiff the money and profits received from Burt. And further claims that the Fitchburgh Railroad Company has received some of the property, but with full knowledge, and should be compelled to ^restore. The defendants demurred to the complaint, of the contents of which a brief statement is given. The Special Term overruled the demurrer and the defendants appeal.

      Adrian H. Joline, for the appellants.

      Matthew Hale, for the respondent.
   Learned, P. J.:

We think that the opinion of the learned justice who decided the case is sound and able, and that it is really of little use to add anything to what he lias said so well. The complaint speaks of a written and verbal agreement between Burt and the construction company. The appellant urges that no verbal agreement could be proved for the reason that the written paper must be understood to embrace the whole agreement between the parties. That is a matter to be determined on the offer of proof at the trial. If testimony of a verbal agreement is offered and objected to, and if it ought not to be received, then it will be excluded; and hence no such agreement will be proved. But the demurrer admits the agreement alleged in the complaint, just as if it had been proved without objection by the defendant at the trial. And if the defendant admits that it made an agreement, there is no reason why it should not be required to perform it. It is not illegal or immoral that a person should make, at the same time, a verbal agreement and a written agreement. The rules of evidence may sometimes prevent the proving of conversations which led up to a written agreement, or which may seem to modify the writing which has finally been taken as the expression of the minds of the parties. "What, under the rules of evidence, the plaintiff will be allowed to prove in the present case is a matter not now before us.

The next question presented by the defendants is on the effect of the previous decision. (Vinal v. Continental Construction Co., 32 Fed. Rep., 343.) That action, as admitted by the demurrer, was one to recover damages against the company for a failure to perforin the contract made between it and Burt. The decision, as so admitted, was upon the ground that it had been established in the suit by the attorney-general that there was no consolidated railroad company, and, therefore, the construction company was excused from performing its contract with Burt. That is, it could not construct a railroad for a railroad company which had no existence, and which could, therefore, acquire no title to land, etc. Of course, this decision between these same parties is conclusive here. It is settled, then, on this demurrer that the construction company cannot carry out and perform the contract into which it entered with Burt.

Now, the question is presented in this case, as Burt paid the construction company a large amount of property as a consideration for the building of this new Boston, Hoosac Tunnel and Western Railroad Company, and as it cannot build such road, ought it to keep what Burt paid it? It would be unjust that it should do so.. And some very strong reasons must be shown to maintain so unreasonable a position. The defendants say that the parties contracted under a mutual mistake'of law, not of fact, that is, the defendants say that they contracted upon the belief that the (consolidated) Boston, Iloosac Tunnel and "Western Railroad Company was an existing corporation, and that this belief was not a belief of the existence of a fact, but of the existence of a rule of law, because the existence of the corporation depended on the validity of the proceedings taken by the former corporations to consolidate, and that such proceedings were legally invalid.

Now, it does not appear by the complaint upon what ground that attempted consolidation was adjudged to be illegal and void; whether the papers were not properly executed; whether the proper action was not taken by the old companies, or whether some other defect existed. If the decision in the attorney-general’s suit was on any of these grounds, it would seem to have been based on a question of fact. If parties had made a contract on the belief that a deceased person had executed a will, and the fact proved to be that he had never signed any paper purporting to be a will, we should hardly think that this was a mistake of law. Nor do we feel by any means confident that, even if the decision in the attorney-general’s suit was based on some ground other than imperfection in the consolidation proceedings, if it were based, for instance, on the inability under the statute of these companies to consolidate, that even then a mistake as to the existence of the consolidated company would be a mistake of law. But we need not pass on that. These parties were not residents of New York, and their contract, so far as appears, was not executed in New York. Foreign laws (including laws of other States) are facts. The presumption that every one knows the laws of his own State is hard enough. He never is presumed to know the laws of all the other States in this country, and the laws of all the nations of the world.

The cases cited by defendants are no exception. Carpentier v. Minturn (6 Lans., 56) was an action on a note made in California, under a contract made in California in regard to business in California, and the question was as to the knowledge of the law of California. So in Holdredge v. Webb (64 Barb., 9), tbe contract was in New York, and the question was as to the laws of New York. Neither of these decisions, therefore, disturb the doctrine that to parties residing and contracting in one country the laws of another country are matters of fact, not of law.

There is still a further consideration. A statute exists in this State authorizing consolidation of railroad companies in certain eases. Suppose that these parties were bound to take knowledge of that statute. Were they bound to know whether, in this particular case, these railroad companies could consolidate ? That question might depend, and probably did, on certain facts, and, as to these facts, the parties might make a mistake. Or, even if they knew all the facts, are they bound to know how the courts will apply the statute to the facts; that is, are they bound to know this in such a way that the ignorance of what the result of such application will be is ignorance or mistake of law ? The defendants insist that the belief of Burt and the defendants that the (consolidated) Boston, Hoosac Tunnel and Western Railroad Company ivas a corporation in existence was a mistake of law, because, subsequently, the court decided that that company was not a corporation. We should be unwilling to take that view, in our present judgment, upon the arguments of counsel.

The defendants’ counsel urges on our consideration (as was urged below) the case of Steinbach v. Relief Fire Insurance Company (77 N. Y., 498). The plaintiff had brought an action on a policy of insurance, and had been defeated on the ground of his violation of one of the clauses. -He then brought that action to reform the policy by making a modification of that clause, and the relief was denied. That is not like the present case. Here the plaintiff sued for damages for breach of the contract. He was defeated on the ground that, although the defendant had broken the contract, yet it was excused from performance because performance was impossible. Now that plaintiff claims that since performance has become impossible, he should recover back that wlaich he gave as a consideration for the promised performance. The actions are not inconsistent one with the other. We are of the opinion that the judgment of the Special Term was correct, and that it should be affirmed, with costs, with the usual leave to withdraw demurrer and answer over on payment of costs.

Landon and Ingalls, JJ., concurred.

Judgment of Special Term affirmed, with costs, with leave to withdraw demurrer and answer over on payment of costs of court below and of appeal within twenty days after service of order.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. ROBERT P. ANIBAL and MICHAEL D. MURRAY, Respondents, v. THE BOARD OF SUPERVISORS OF FULTON COUNTY, Appellant.

      Certificate of the State assessors as to the reasonable costs and expenses of an appeal from the equalization of assessments by a board of supermsors — effect of.

    The provisions of chapter 435 of the Laws of 1884, amending section 15 of chapter 312 of 1859, relating to appeals to the State assessors from the equalization of assessments.for the purposes df taxation made hy boards of supervisors, to the effect that “whenever any appeal so made shall he sustained the State assessors shall certify the reasonable costs and expenses arising therefrom and connected therewith on the part of the appellant and respondent, and such amounts so certified shall he audited hy the hoard of supervisors and levied and collected,” etc., do not determine the amount which may he properly paid hy a hoard of supervisors to their counsel as the compensation for his services in the matter of such an appeal.
    Such provisions are rather analogous in their effect to the statutes relating to the taxable costs in an action.
    Appeal by the defendant, the Board of Supervisors of Fulton County, from an order made at a Special Term of the Supreme Court, held at the chambers of Mr. Justice Putnam, in the village of Saratoga Springs, and entered in the office of the clerk of the county of Fulton, on the 4th day of January, 1889, awarding a peremptory mandamus against the Board of Supervisors of Fulton County, requiring said board forthwith to audit and allow to Anibal and Murray the balance of their bill and claim as sent to the State assessors and by them returned to the clerk of the county of Fulton, and in accordance with the supplemental bill and claim presented to the Board of Supervisors of Pulton County by Anibal and Murray to the extent and amount of at least $T00, together with interest.

      John M. Carroll, for the appellant.

      Robert R. Anibal, for the respondents.
   Learned, P. J.:

This is an appeal from an order granting a peremptory mandamus. The relators in their affidavits state positively that in December, 1886, they made a contract with the board of supervisors, through a committee of that body, to do certain legal services at a price not less than $1,200 and disbursements, and that they did those services. They produced a report of the committee made to the board December 21, 1886, stating this contract and an acceptance of the same. The defendants make an answer denying this on information and belief, verified by the present chairman. There are affidavits also produced by the defendant, but they contain no denial of the facts alleged. They only state the affiant’s ignorance of such alleged contract. We think, therefore, that the learned justice properly held that the facts alleged by the relators had not been put in issue by the defendant. (People ex rel. Kelly v. Common Council, 77 N. Y., 503, 511.) This rule is not in conflict with the rule that on granting a peremptory ma/ndamus the facts stated in defendant’s affidavits must be taken as true. (People ex rel. German American L. and T. Co. v. Richards, 99 N. Y., 620.) The difficulty is, that defendant does not state facts, nor deny relator’s allegations.

We have, then, the employment of the relators by the board at a specific amount and the performance by the relators of the services. When the relator’s bill was presented to the board in December, 1881, it was disallowed, in the language of the resolution, on the ground that this board has no authority to audit the bill for any different amount than is certified by the State assessors, and for no other reason or on no other grounds.” Hence all question as to the alleged contract, etc., is eliminated and the question is simply one as to the power of the board. The matter in which the relator was employed was an appeal by the town of Perth to the State assessors from the equalization of the board of supervisors. Now, it is true that on such appeal the parties really interested to oppose the appellant are tbe other towns of the county. But it will be seen by section 13, chapter 312, Laws of 1859, that the notice is to be served on the chairman and clerk of the board, so that the board is made the legal respondent, and not the remaining towns. Therefore, it was said in People ex rel. Supervisors of Ulster v. City of Kingston (101 N. Y., 82, at page 96) that the board “ was the party respondent in the appeal. It was its duty, as the representative of the county, to defend its equalization if it believed it to be just, and as incident to the duty, it could incur the necessary expenses in defending its action.”

We, therefore, see no reason to doubt that the action of the board in employing the relators was lawful. Probably, in the view of the legislature, the board would eventually place the burden of expense where it belonged.

But the defendants urge that this right of the board to contract for services of counsel in such matters is controlled by the provisions of chapter 435, Laws of 1884, amending section 15 of chapter 312, Laws of 1859, as amended,' etc. This section is: * -x- * “ whenever any appeal so made, shall be sustained, the State assessors shall certify the reasonable costs and expenses arising therefrom and connected therewith on the part of the appellant and respondent, and such amounts so certified shall be audited by the board of supervisors and levied and collected,” etc. In accordance with this law the relators presented their bill to the State assessors at $1,400. It was allowed at $500 ; and at that amount was included in the respondent’s costs and expenses of $3,312.33, certified by the State assessors. In accordance therewith the board of supervisors allowed the relator’s bill at $500, and this present proceeding is to enforce the residue of the contract-price. This presents the real question in this case. Does the statute authorizing the State assessors to certify the costs and expenses deprive the relators of their rights under their contract; that is, does the statute render the contract void ?

To enable us to test the question, we may suppose that the relators had contracted with the board to do all these services for $100, could they have compelled the board to pay any more? Now, if the defendant’s contention is correct, then whenever such an appeal is taken and the board of supervisors desires to oppose the appellant, the only arrangement it can make with counsel is, that they shall receive whatever the State assessors will certify. This is a contract which few would be willing to accept. The State assessors may know what labor was performed in their presence, but they have no opportunity of knowing what was done in the preparation of the case outside. Further, the statute provides that when the appeal is not sustained, the assessors shall certify the reasonable costs and expenses on the part of appellant and respondent, and these shall be a charge on the appellant, to he levied by the board. It seems to us, therefore, that the amounts thus to be certified are somewhat analogous to taxable costs. As taxable costs do not determine the amount owing by client to counsel, so we think that authority to certify these costs given to the State assessors does not prevent the board of supervisors from contracting with their counsel as to compensation, and that such contract is binding. Such is the fair inference, also, from the language of the court in the case last cited. “ The board of supervisors must, of necessity, incur the expenses in the first instance, on its own credit.” And a board will have very poor credit if, when it contracts to pay $1,200, this is to be understood to mean “ or as much less as the State assessors may certify.”

The defendant insists that mandamus will not lie because its action was judicial. It did not audit. It refused to audit, believing itself to have no power. There is no dispute about facts. If the board had said, we never made such a contract and the relator’s services are not worth that sum, the case would have been different. But it very fairly and frankly stated its legal position by the resolution which it adopted. "We judge from that resolution that it appreciated the justice of the relator’s claim, but thought that it was forbidden to allow it.

We think that the order should be affirmed, with fifty dollars costs and disbursements.

Landón and Ingalls, JJ., concurred.

Order affirmed, with fifty dollars costs and disbursements,


text:
    MINERVA J. BEAVER, as Executrix of AZIEL G. BEAVER, Deceased, Respondent, v. CHARLES C. BEAVER and Another, as Administrators of JOHN O. BEAVER, Deceased, Appellants.

      Savings bank deposit, by one in the name of another, without delivery of the pass-book to the latter — the pa/i'ty in whose na/me the deposit is made is entitled thm'eto.

    A party deposited in a savings bank bis own money in tlie name of another, and subsequently died, having retained in his possession, up to the time of his death, the pass-book given by the bank in evidence of the deposit so made.

      Reid, that the'beneficiary named as the depositor was entitled to draw from the bank the deposit so made.
    Appeal by the defendants from a judgment rendered at the Ulster Circuit, before the court without a jury, directing that the plaintiff recover from the defendants the sum of $2,829, with costs, and that the Ulster County Savings Institution pay to the plaintiff the sum of $2,829 deposited with it, by order of the court, to be paid to the successful party in this action.

      D. M. De Witt, for the appellants.

      F. L. Westbrook, for the respondent.
   Learned, P. J.:

The opinion of the learned justice who decided this case is quite satisfactory. "We should think nothing further needed if the appellants had not so strongly urged that there was no executed gift. Their argument rests on the fact that John O. Beaver continued in possession of the pass-book. Now (assuming that the money was originally the property of John O.) the thing given was the money, not the book. John O. parted with possession of the money and .put it under the control of Asahel. Asahel could draw the money and could give a valid receipt therefor, that is as soon as he was of age. Before that time his guardian could do the same. But it may be said he could not draw it withou, possession of the pass-book. This provision is for the security of the bank, which might be liable to a person to whom the bank-book had been assigned. ( Warhus v. Bowery Sav. Bank, 21 N. Y., 543; National Bank v. Wash. Co. Bank, 5 Hun, 605.) But it has nothing to do with the question of title to the money. For instance, one holding a certificate of deposit payable on its return is the owner of the money deposited. Yet, to obtain that money, he needs possession of the certificate. But, further still, the pass-book is not negotiable paper, and its possession constitutes in itself no evidence of a right to draw money thereon.” (Smith v. Brooklyn Sav. Bank, 101 N. Y., 58.)

In Martin v. Funk (75 N. Y., 134) a deposit was made by A. in her name “ in trust for B.” A. kept the pass-book and drew the interest till her death, and B. was ignorant of the deposit. It was held that the deposit belonged to B. Now it was not claimed that there was any active trust. A. had no duties to discharge in managing the property. And the decision really was that the money belonged to B. In the present case, if John O. had deposited the money in his own name in trust for Asahel, we should have had the very circumstances of Martin v. Funk. But John O. did more. He did not retain even the nominal title to the deposit, giving Asahel the beneficiary interest. He put the whole title in Asahel. In Martin v. Fwnk the retaining of the pass-book was said to be as trustee. Here it may properly be said to have been as friend or natural guardian. And we must notice, in regard to Massachusetts cases, that Martin v. Funk is not in harmony with Massachusetts decisions. But it is our law, and it is thoroughly sound common sense, like everything else which came from the learned judge who wrote the opinion.

It seems to be conclusive, from the case of Mabie v. Bailey (95 N. Y., 206), that John O. could not have drawn out this money, even though he was in possession of the pass-book. In Scott v. Harbeck (49 Hun, 292), money stood in a savings bank in the name of defendant’s testatrix in trust for plaintiff. The deceased drew it out and used it. Her estate was held hable, although plaintiff had no knowledge of the trust.

Another suggestion may be made. Suppose no pass-book had been issued, or suppose, as is sometimes the practice, the bank had kept the custody of the pass-book, would there be any doubt then that the deposit belonged to Asahel ? The pass-book is a mere voucher, mere evidence against the bank. The rights of the parties rest in the terms of the deposit shown on the books of the bank, and duplicated in the pass-book.

For these reasons, and on the opinion of the learned justice, the judgment should be affirmed, with costs.

Ingalls, J., concurred; Landon, J., concurred, not without doubt.

Judgment affirmed, with costs.


author: Ingalls, J.:

text:
    CHARLES H. ADAMS, Appellant, v. THE CITY OF COHOES, Respondent.

      Tenancy from year to yean' — legal effect of holding over after the expiration of the term — notice of intent to terminate the lease.

    Tlie city of Cohoes became the tenant of one Adams in certain premises in that city on May 1, 1870, and continued to occupy the same continuously up to May 1, 1875. In March, 1875, Adams informed the common council of the defendant that he should from the first day of May, 1875, exact $1,200 as the anuual rent of said premises, whereupon a resolution was passed by the common council authorizing the mayor to rent the said premises for the use of the city, for a period of three years from May 1, 1875, at an annual rent of $1,200. No lease was executed by either party pursuant to this resolution, but the defendant continued in occupation of the premises, paying the rent of $1,200, until August 1,1885, when it vacated the premises and tendered the key thereof to the plaintiff’s agent, who refused to receive the same. Adams was soon thereafter informed that the city of Cohoes had abandoned tho premises. The rent was paid by the city to May 1, 1886.
    In an action, brought by Adams to recover the rent from May 1,1886, to November first of that year: ■

      Held, that a tenancy from year to year was created by law as the result of the holding over by the defendant, in the possession of the premises, after the expiration óf the first year.
    That the legal effect of such holding over from year to year was the creation of a new term which expired at the close of each current year, at which period the tenant was at liberty to vacate and surrender the premises, and tho landlord could institute proceedings to dispossess the tenant, neither party being required to serve upon the other notice of an intention to terminate such tenancy.
    That, assuming that notice was required to terminate the tenancy, the facts of this case showed that a sufficient notice to Adams of the intention of the defendant to terminate the tenancy was' given, nine months previous to the close of the year, for the rent accruing subject to the expiration whereof Adams sought to recover.

      Appeal from a judgment, rendered at tlie Albany Circuit before the court and a jury, and entered in the office of the clerk of the county of Albany on the 19th day of February, 1889, as the same was corrected by an order made at Special Term of the Supreme Court, held in the county of Albany on the 4th day of March, 1889, and entered in said clerk’s office on the 5th day of March, 1889.

      Earl L. Stimson and Edwin Countryman, for the appellant.
    N. C. Moak, for the respondent.
   Ingalls, J.:

This action was brought by the plaintiff to recover of the defendant the rent of certain premises situated in Cohoes, from May 1, 1886, to the first of November of the samé year, at the rate of $1,200 a year, payable semi-annually. The defendant became the tenant of the plaintiff, of said premises, May 1, 1870, at the annual rent of $700, payable semi-annually, and occupied the premises continuously to May 1, 1875, at such rent. In the month of March, 1875, the plaintiff informed the common council of the defendant that he should exact $1,200 as the annual rent of said premises, commencing on the 1st day of May, 1875, payable semiannually. On the 9th day of April, 1875, the.common council of the defendant adopted the following resolution.

Resolved, That the mayor be and hereby is authorized to rent, for the use of the city, the premises in Egbert’s Hall, now occupied as common council chamber and offices for justices and city officials, for a period of three years from May 1, prox., at an annual rent of twelve hundred dollars ($1,200).”

No lease or other written agreement was executed by either, party, but the defendant continued in the occupation of the premises, paying the rent therefor, at the yearly sum of $1,200, semi-annually, on the first days of November and May of each year, until August 1,1885, when the defendant vacated the premises and tendered the key to John "Wakeman, who was the plaintiff’s agent to receive and collect rents of the premises in question. "Wakeman refused to receive the key. The plaintiff was soon thereafter informed that the defendant had abandoned the premises. The defendant paid the rent to May 1, 1886, the close of the year in which the defendant vacated the premises. The plaintiff sought to recover at the trial $600 rent of the premises from May 1, 1886, to November first of the same year, with interest thereon from the time the same was claimed to have become payable. The plaintiff based his right of recovery upon the alleged ground that the defendant had omitted to serve upon him a proper notice of its intention to terminate the tenancy on the 1st day of May, 1886. No lease or other written agreement having been executed by either of the parties in regard to said rental, and the defendant having occupied the premises upon the same terms and conditions, except the payment of the increased rent, from May 1, 1875, to the time of the abandonment of the premises August 1, 1885, as it had done previous to May, 1875, we are convinced that a tenancy from year to year was created by law, as the result of the holding over by the defendant in the possession of such premises, after the expiration of the first year, with the consent,' expressed or implied, of the plaintiff, and such relation continued between the parties until May 1, 1886. The defendant having continued in the actual occupancy of the premises after May 1, 1885, and until August 1, 1885, it became, in consequence of such holding over, liable to the plaintiff for the rent of the premises until the 1st day of May, 1886. ¥e conclude that the legal effect of such holding over by the defendant from year to year was the creation of a new term which expired at the close of each current year, at which period the tenant was at liberty to vacate and surrender the premises, and the landlord could institute proceedings to dispossess the tenant, and neither party was required to serve upon the other notice of an intention to terminate such tenancy. No element of uncertainty as to the time when the tenancy, in legal effect, would terminate became incorporated into the agreement between the parties;. no option or election to continue the tenancy for an uncertain period by either party has been shown, and, consequently, this case is distinguishable in that particular from some of the adjudications to which we have been referred, of which Pidkett v. Bartlett (107 N. Y., 277) is an example. "Without undertaking to discuss the numerous cases to which our attention has been directed by the respective counsel, Which would be an almost endless task, we content ourselves with stating the result of our examination of the facts and of the law which we deem applicable thereto, which is, that the cause was properly' decided at the circuit, first, because no notice, such as plaintiff claims,, was required to terminate such tenancy. The holding over from year to year upon substantially the same terms and conditions, and with the consent of the plaintiff, in effect, created .each year a new term complete in itself and having a certain termination. (Park v. Castle, 19 How. Pr., 29.) That case was cited with approval in Schuyler v. Smith (51 N. Y., 316); Nichols v. Williams (8 Cow., 13); Post v. Post (14 Barb., 255); Conway v. Starkweather (1 Den., 113); Austin v. Strong (47 N. Y., 679). In 4 Kent’s Commentaries (5th ed.), 114, the author says: It is settled, however, that notice is not requisite to a tenant whose term is to end at a certarn time, for in that case both parties are apprised of their rights and duties.” Moreover, if it should be held that notice was required to terminate the tenancy, we think sufficient appears in the case from which such notice to the plaintiff may be inferred of the intention of the defendant to answer such requirement. Nine months previous to the close of the current year the defendant vacated the premises, and tendered the key to the plaintiff’s agent, of which the plaintiff was duly informed, and within a short time thereafter. No more unmistakable evidence of the intention of the defendant to terminate the tenancy could be furnished.

The judgment should be affirmed, with costs.

Learned, P. J., and Land on, J., concurred.

Judgment affirmed, with costs.


author:
Ingalls, J.:
      Landón, J.:

text:
    JOHN SANFORD and BELINDA SANFORD, Respondents, v. FRANCIS McDONALD and WILLIAM COX, Appellants.

      Determination of a disputed boundary line by oral agreement and the change of the location of a pai'tition in a building on the premises to conform therewith — what is not a settlement of a dispute or controversy.

    McDonald and Cox received from one Patrick a deed of certain premises; after the grantees liad taken possession thereof a question arose in regard to the boundary line between the premises thus conveyed and certain premises which the same grantor had conveyed to another party. Patrick having caused a survey to be made by an engineer, and a chalk-line having been drawn upon the line of such survey, the parties were asked whether they were satisfied with such line, and each replied in the affirmative, whereupon an existing partition in the building upon the premises was removed and was located upon such line by direction of Patrick.
    Held, that as the survey was made at the instance of Patrick in order to ascertain the true line, which neither party assumed to know, each being desirous that the true line should be located, but neither manifesting any willingness to abandon or surrender any of their rights, that there was no settlement or compromise of a disputed line; and it being demonstrated by a subsequent survey that the line so located was erroneous, that the same was not conclusive upon the parties owning the respective parcels of land.
    That the only effect of the assent of the parties to such line was that they were to accept and abide by it, if it was the true line, and not otherwise, and that really no dispute or controversy was settled between them.
    Appeal by tbe defendants from a judgment of the Supreme Court, in favor of the plaintiffs, entered upon the report of a referee, appointed by an order of reference directing him to hear and determine the issues; which judgment was entered in the office of the clerk of the county of Rensselaer on the 17th day of December, 1887.
    One Patrick, being the owner of certain premises on the north side of Congrees street, between Third and Fourth streets, in the city of Troy, conveyed by deed of January 5, 1875, to the defendants a portion of those premises, and to the plaintiffs, by deed of February 15, 1875, another portion of the premises. The controversy in this action arose as to the boundary line between the premises thus conveyed.

      Charles E. Patterson, for the appellants.

      Edgar L. Fursman, for the respondents.
   Ingalls, J.:

"We are satisfied that the decision of the referee is in accordance with the true line as established by actual survey, and, in that particular, substantial justice has been administered. The vital question presented by this appeal, as we regard it, is, whether the defendants were successful at the trial in establishing their defense upon the alleged ground that there had been a practical location of the line by which the rights of the parties had become settled. We have given that question careful consideration, both in regard to the facts of the case and the law applicable thereto, and have reached the conclusion that the decision of the referee was correct upon that question, and that the plaintiffs’ rights have not been concluded by what occurred in regard to the attempted location of the line, based upon the survey of Charles L. Fuller. John Patrick was the common source of the title under which the plaintiffs and defendants claim. The defendants received from John Patrick their deed of the premises claimed by them January 5, 1875. On the 15th day of February, 1875, the plaintiffs received from John Patrick a deed of the premises claimed by them. After the plaintiffs had taken possession of the premises some question arose in regard to the line between the premises of the respective parties, and John Patrick, aided by Mr. Stephen Warren, caused a survey to be made by Charles L. Fuller, and upon the line produced by such survey a chalk line was drawn, and the plaintiff John Sanford, and the defendant William Cox were asked whether they were satisfied with such line, and each replied in the affirmative, whereupon the partition was removed and located upon such line by the direction of Mr. Patrick. It is apparent from the evidence that all of the parties at the time supposed that the line surveyed by Mr. Fuller was the correct line, and that their acquiescence therein was based upon such assumption. The referee has found the following: But the line so drawn was not a line drawn and fixed as or in compromise of any dispute between the parties.” We are satisfied that the evidence sustains such findings. The survey was at the instance of Mr. Patrick in order to ascertain the true line, and neither party assmned to know where it was, and each were desirous that the true fine should be located, and neither manifested any willingness to abandon or surrender any of their rights, but were willing to accept the true line. There was, therefore, no settlement or compromise of a disputed line, as neither party assumed to know where the true line was previous to the survey by Mr. Fuller, and doubtless each at the time supposed that such survey was correct. It has been demonstrated by a survey made jointly by Mr. Fuller and Luther D. Eddy, that the survey made by Mr. Fuller in the first instance was erroneous, and, consequently, all that was done by the parties in the attempt to locate the line based upon Mr. Fuller’s survey was based upon a mutual mistake in regard to tbe correctness of such fine. Practically tbe parties were willing to accept and abide by it, if it was the true line, and not otherwise, and really no dispute or controversy was settled between them. Under such a state of facts we are satisfied that we should not adjudge that either party became estopped by such attempted location of the line. It has been shown that the true line was susceptible of demonstration by a survey correctly made, and, consequently, there was no practical difficulty in ascertaining its true location; and there really existed no well-founded cause for dispute or controversy between, the parties, and there was, therefore, nothing to compromise, in the sense required to constitute the basis of a practical location. We do not overlook the expression contained in the eighth request of the defendants to the referee to find, which is as follows: “ That while negotiations for the sale from Patrick to the plaintiffs were pending, and before the delivery of their deed to them, a disputed question arose between the plaintiffs and defendants as to the westerly line of the defendants,” etc. The answer thereto by the referee explains sufficiently what he intended to find upon the subject, and the nature of the dispute. There has not been shown by the defendants such an acquiescence by the plaintiffs, in the line which was based upon the erroneous survey of Mr. Fuller, which, as to its character or duration, can be regarded sufficient to conclude the plaintiffs’ right to repudiate such erroneous line, and to insist upon the true line. We, therefore, conclude that a practical location of the line has not been established. In support of the views expressed we refer to the following adjudications upon this subject: Hubbell v. McCulloch (41 Barb., 288); Adams v. Rockwell (16 Wend., 285) ; Baldwin v. Brown (16 N. Y., 359); Jackson v. Douglas, (8 Johns., 367); Reed v. McCourt (41N. Y., 435).

We are of opinion that the plaintiffs have not mistaken their remedy, as we think the action to recover the possession of real property may be maintained in the form adopted by the plaintiffs. The decision of the referee we deem correct, and should be affirmed with costs.

Learned, P. J., concurred.

Landón, J.:

I concur in the result; because I think the acquiescence five years in the practically located line was not long enough. It was not necessary that the true line should be in dispute. (Sherman v. Kane, 86 N. Y., 57, 73.)

Judgment affirmed, with costs.


author: Ingalls, J".:

text:
    SAMUEL B. RICHARDSON, Respondent, v. EDWARD VAN NESS, Appellant, Impleaded with DAVID LYONS.

      Master and servant — when the relation does not exist between a passenger and, the driver of a ca/rriage of a transportation company.

    A passenger, who had left New York for an excursion to the Adirondacks, met upon the railroad train an agent of a transportation company which carried passengers by stage from North Creek, a station upon the railroad, to Blue Mountain lake, and engaged a buck-board carriage to carry himself and jjis wife between those points. After entering upon the journey with the brick-board carriage the passenger, being annoyed by the dust which was created by teams in advance of his own, asked Mr. Lyons (the driver) if he would have to keep behind them and take their dust all day, and he said “ No, there is a place just beyond here where I can pass.” The passenger then said, “That is all right; you will do so then.”
    When they came to a fork in the road the driver pulled his horses to the left and urged them forward to a sharp trot. One Richardson, the driver of the carriage in front, struck his horses and started them into a run, and both teams continued running until the roads came together, when the carriage drawing the passenger came so near to the horses drawing the other carriage as to strike them with the hind wheel. The horses thereupon ran away and overturned the wagon, injuring Richardson.
    In an action brought by Richardson against the passenger to recover for such injuries:

      Held, that no recovery could be had against him."
    Appeal by the defendant from a judgment rendered upon a trial at the Saratoga County Circuit, before the court and a jury, upon a verdict in favor of the plaintiff for $1,000, which judgment was entered in the office of the clerk of the county of Saratoga on the 15th day of October, 1888.
    The action was for injuries suffered by the plaintiff in a collision on the highway between a carriage and horses driven by the plaintiff Richardson, and a carriage and horses driven by the defendant Lyons, in which latter carriage the defendant Van Ness and his wife were passengers. The plaintiff’s horses ran away, overturned the carriage and injured the plaintiff.

      C. S. Lester, for the appellant.

      E. T. Brackett, for the respondent.
   Ingalls, J".:

This action was brought by the plaintiff to recover damages for an injury which the plaintiff received as the result of a collision in a public highway, between a carriage and horses driven by the plaintiff and a carriage and horses driven by the defendant Lyons, which collision and injury the plaintiff claims was produced by the negligent conduct of Lyons in the management of the team which he drove, and to which the defendant Van Ness contributed by directing Lyons to pursue the course which he did, and thereby became also liable to the plaintiff. The defendant Van Ness, accompanied by his wife, started from the city of New York ujion an excursion to the Adirondacks, and when uj>on the cars between Saratoga Springs and North Creek, R. B. Scarrett, who was at the time an agent of the Blue Mountain Lake Stage Transportation Company, came into the car where Van Ness was sitting, and the latter applied to-such agent for transportation from North Creek to Blue Mountain Lake for himself and wife, and Scarrett undertook to furnish a suitable conveyance, charging therefor eleven dollars, which Van Ness paid, and Scarrett delivered to him a ticket, as follows:

Blue Mountain Lake Stage and Transportation Company. No. 212. North Creek, August 3, 1888. Special ticket. The bearer, Mr. VanNess, has engaged two seats in patent covered buckboard carriages, through to Blue Mountain Lake, party of two. Number and value of ticket exchanged. Price $11. Cash $11. Buck-board No. —.
“R. B. SCARRETT.
“ Agent.”

Scarrett testified at 'the trial as follows : “ The defendant at that time paid me eleven dollars and I gave him his ticket. In pursu-

anee of that ticket and agreement, I hired a buck-board for the purpose of fulfilling that contract to transport defendant; I hired Mr. Lyons’ carriage.” When the cars reached North Creek the defendant Yan Ness and his wife were conducted by Scarrett to such carriage, and Lyons took the driver’s seat and drove the team. After they had proceeded about two miles, Mr. Yan Ness being disturbed by the dust which was raised by the teams in advance of theirs, addressed Lyons, as appears by his evidence, as follows : “ I asked Mr. Lyons if we would have to keep behind them and take their dust all day, and he said no; there is a place just beyond here where I can pass; I said that is all right; you will do so then ; I had no other conversation with him on that subject; when we got to the forks of the road he got behind the rear coach as close as he could, and when he came to the place where the road forked he pulled his horses to the left and urged them forward to a sharp trot, and there were two carriages on the right that Lyons turned out to pass ; they were about twenty-five feet apart, as near as I can judge ; the first carriage was driven by the plaintiff; he struck his horses and started them up into a run, and Lyons urged his horses into a run, and both continued running until the roads came together; Lyons got to the point of intersection first, and plaintiff run his horses so that his near horse struck the off hind wheel of Lyons’ carriage; I was sitting on the off side of the back seat, and I could have put my hand over the side of the carriage and touched the harness of the near horse; I don’t know what further occurred to the plaintiff or his carriage.”

The plaintiff denies striking his team, but from all the circumstances we are inclined to think that he did, and that he entered actively into the race for the purpose of keeping the lead. Except the remark of Yan Ness, given above, we fail to discover a word or act on his part which woirld justify an inference that he desired Lyons to pass the plaintiff’s team in an improper manner, and we think what he did say, fairly construed, does not justify any such inference. In the conversation with Mr. French we fail to perceive that Yan Ness made any admission which materially changes his version of the transaction. It appears that Yan Ness was unacquainted with the road, and knew nothing of any opportunity which would be offered for passing the other teams, and must have depended entirely upon Lyons, who was familiar with the route, and, as we have seen from the evidence, it was Lyons who first made the remark “There is a place beyond here where I can pass,” to which Yan Ness replied, “That is all right, you will do so then.” There was nothing objectionable in that remark of Yan Ness. He did not assume to control the conduct of Lyons, but left him to perform the duty according to his own judgment and discretion, being conscious that he knew the route, and was familiar with the duty which he had undertaken to perform. The conduct of Yan Ness, as disclosed by the evidence, does not seem extraordinary or unreasonable. He had expressed to the agent, Scarrett, the desire to be transported as expeditiously as he reasonably could be on account of his wife, who, he said, was timid and averse to pursuing the journey after dark. For such purpose he had paid the agent an extra price for a conveyance in which himself and wife would be the only passengers. It may be inferred that, with so light a load, if Lyons had been allowed to pass the other teams, which were all much more heavily loaded, that the other passengers would not have been disturbed by the dust produced by the conveyance managed by Lyons, as it would probably have soon been out of the way of the other teams. Lyons took the side road, and, but for the determination of the plaintiff to prevent his team from passing the one which he drove, no 'trouble would have arisen, as it appears that the other teams did not enter the race, but allowed Lyons to drive by. Lyons was the agent of the transportation company, and was in'no sense to be regarded the agent or servant of Yan Ness, and such was the view taken by the learned justice at the trial, as appears from his charge upon that question, in which he remarked to the jury as follows: “ I am of opinion in this case that Lyons was not the servant of Mr. Yan Ness. He was the servant of the transportation company, or at least employed by the transportation company, and in fact represented it. The defendant, Yan Ness, employed the transportation company to send him from the station there to Blue Mountain lake.” Such direction was clearly authorized by the facts of the case and the law applicable thereto. (Story on Agency [4th ed.], § 453®, and cases there cited). Ye fail to discover in the case anything which would justify the conclusion that the defendant, Yan Ness, directed, advised or assisted in the perpetration of any wrong on that occasion. The learned justice further remarked: “ It is proper for me to say that the act of the defendant in asking the driver to pass by was perfectly legitimate and proper. Certainly no wrong in that.” We fail to discover from the evidence what more Yan Ness did or said upon that occasion which would justify even an inference that he committed or even intended to countenance any wrongful conduct on the part of Lyons. He did not assume to control Lyons, but allowed him to manage his team as he thought proper, doubtless assuming that Lyons was familiar with the route and the custom observed by drivers in the management of their teams in the transportation of passengers. The plaintiff and Lyons were both the servants of the transportation company, as Yan Ness knew; and he certainly had no reason to suppose that either would be likely to do an act which would prejudice the company or the passengers who were being transported by such company. All that Yan Ness seems to have done, after the .remark which he made in reply to the declaration of Lyons, was merely to sit still in the carriage without uttering a word, so far as the case discloses, until the collision occurred, and was not aware that any injury had been done until some little time thereafter. From all the facts and circumstances of the case, we are convinced that no cause of action was established against Yan Ness, and that the verdict was unauthorized. The complaint should have been dismissed as to such defendant, as requested by his counsel.

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

Learned, P. L, concurred; Landon, J., not voting.

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


text:
    WINFIELD S. RUNDELL, Respondent, v. ALEXANDER N. BENTLEY, Appellant.

      Agreement to support cm infirm person in consideration of a conveyance of her propa'ty — liability of the party maiding such promise, and neglecting to perform it, to one who furnishes the means of support.

    One Bentley, having received from a Mrs. George, in consideration of an agreement on liis part to care for and support her during her natural life, all the real and personal property of which she was then possessed, neglected, when she was taken sick and was in a destitute condition, to provide her with necessary food, fuel and attendance according to his agreement. The weather being exceedingly cold and stormy Mrs. George applied to ~W. S. Rundell to aid her in procuring such things as were necessary for her comfort. Rundell not only provided necessary food and fuel, but, as Mrs. George was feeble from age and sickness, gave his personal attention to her care.
    In an action brought by Rundell to recover the value of the articles furnished and for his services:

      Held, that the evidence being sufficient to justify the jury in concluding that the defendant was informed that Rundell was furnishing- the provisions and caring for Mrs. George, and that he did not object thereto, that Rundell was entitled to recover.
    Appeal by the defendant from a judgment of the Greene County Court, entered in the office of the clerk of the county of Greene on the 28th day of January, 1889, affirming a judgment in favor of the plaintiff in a court of a justice of the peace of the town of Greenville in said county.

      D. II. Daley, for the appellant.

      Sidney Crowell, for the respondent.
   Ingalls, J.:

On the 26th of November, 1887, Mrs. Maria S. George conveyed to Alexander N. Bentley, the defendant, the real and personal prop, erty of which she was then possessed, and, as the consideration for such transfer, he agreed to care for and support her during her natural life. After such transfer the defendant appears to have provided for Mrs. George satisfactórily until about February 1, 1888. She was living in a house upon the farm which she conveyed to the defendant, and was taken sick about the 1st of February, 1888, and was in a destitute condition owing to the omission of the defendant to provide her with necessary food, fuel and attendance according to his agreement. The weather became exceedingly cold and stormy, and the defendant omitted to visit her, and she applied to the plaintiff in her destitution to aid her in procuring such things as were necessary for her comfort, and the plaintiff not only provided necessary food and fuel, but devoted his personal attention to her care, as she was feeble from age and sickness. „ And it was for such advances and attention that the recovery was had in the Justice’s Court, where the merits of the controversy were investigated thoroughly in a trial which occupied four or five days. "We have examined the evidence with care, and are satisfied that thfe plaintiff established a meritorious cause of action, which, in view of all the circumstances, justified the verdict which was rendered by the jury in favor of the plaintiff. It seems very clear that the defendant omitted the performance of his agreement at a time when, considering the inclemency of the weather and the destitute condition of Mrs. George and the state of her health, he was called upon to exercise more than ordinary care and attention in administering to her necessities, and in performing the requirements of the contract on his part. W e think the jury were justified by the facts and circumstances in concluding that the defendant was informed that the plaintiff was furnishing the provisions and caring for Mrs. George at the time, and did not object thereto. Under the circumstances, the neglect of the defendant was almost criminal. In addition to the real and personal property which the defendant received from Mrs. George, he also received a portion of her pension money. It was, upon the trial, insisted by the defendant that there had been a cancellation of the agreement between him and Mrs. George, by which he became released from his obligation to provide her such support and care, and much time was occupied at the trial in the investigation of that subject. We are convinced that the jury were justified in finding that such agreement was in force at the time the plaintiff furnished the provisions, and rendered the services, for which he recovered. The case contains very many objections on the part of the defendant, all of which we have examined, and are convinced that the County Court dealt properly with them in disposing of the ajDpeal. Section 3063 of the Code, of Civil Procedure provides: “ The appellate court must render judgment according to the justice of the case, without regard to technical errors or defects, which do not affect the merits.” This is a salutary provision, and, we think, peculiarly applicable to this case, and has been wisely applied by the County Court. The merits of the controversy are, in our judgment, decidedly in favor of the plaintiff, and no errors were committed at the trial which materially affected the merits, adversely to the defendant.

The judgment should, therefore, be affirmed, with costs.

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

Judgment affirmed, with costs.