text:
    In the Matter of BETSEY ANN MASON, a Supposed Lunatic. THE PEOPLE OF THE STATE OF NEW YORK ex rel. BETSEY ANN MASON, Appellant, v. THE COUNTY COURT OF ONONDAGA COUNTY, A. J. NORTHRUP, County Judge, and ALANSON HICKS, Respondents.

      The County Court has power to set aside an inquisition not signed by the jury — its power to do so is not restricted by section 3336 of the Code of Civil Procedure — it may direct a new trial to be had before a court and jury at a County Court.

    In pursuance o£ tile direction, of a commission, issued on. January 27,1888, under an application made to the County Court of Onondaga county by the respondent Alanson Hicks, for a commission to inquire as to the alleged lunacy of the appellant Betsey Ann Mason, the matter was brought to a hearing before the commissioner and a jury. At the conclusion of the hearing, and after the charge of the commissioner, the jurors, having unanimously found that the appellant was not a lunatic, nor incapable of governing herself or managing her affairs and property, were thereupon discharged by the commissioner without having signed an inquisition as required by section 3333 of the Code of Civil Procedure. An inquisition or return was, however, made and signed by the commissioner and filed.
    Upon an appeal from an order denying a motion to dismiss the proceeding made by the appellant Betsey Ann Mason, based upon the inquisition signed by the commissioner and the affidavits of the appellant’s attorney, and from an order, granted on the motion of the respondent, setting aside the verdict or finding of the jury- and directing a new trial to be had before the court and a jury at a trial term thereof, the appellant claimed that as the inquisition was not signed by the jury it was irregular and defective, and that the court had no power to take any action in the proceeding except to dismiss it.

      Held, that the rule, which had been well settled before the adoption of the Code • of Civil Procedure, that such an inquisition could be set aside by the court for irregularity, or where it did not conform to the requirements of the statute, or where the facts did not justify the finding of the jury, had not been changed by the adoption of the said Code.
    That section 2386 of the said Code does not restrict the power of the court to grant a new trial to a case in which a proper inquisition has been returned to the court.
    The appellant also claimed that even if the court had power to grant a new trial in this case, still it had no right to change the mode of trial from a trial before a commissioner and a jury to a trial before a court and a jury to be held at a trial term of that court.

      Held, that the claim could not be sustained, as substantially the same question had been decided by this court In the Matter of Jackson (37 Hun, 306), where it was decided that upon the return of a commission with the inquisition the court might in a proper case, direct the issues of fact to be tried before a jury in a County Court.
    Appeal from an order of the Onondaga County Court, entered in the office of the clerk of that county on May 18, 1888, setting aside the verdict of a jury in this proceeding and granting a new trial, and from an order of the same court, entered in the same clerk’s office on May 11, 1888, denying the motion of Betsey Ann Mason, the alleged lunatic, to require the petitioner to pay costs, and for the dismissal of the petition ; and, also, an appeal from an order made at a Special Term of the Supreme Court, entered in the same county clerk’s office on July 16, 1888, dismissing a writ of prohibition granted therein, with costs and disbursements.

      George Barrow and M. M. Waters, for the appellant.

      T. K. & L. E. Fuller, for the respondents.
   Martin, J.:

There are three separate appeals pending between the parties in the above-entitled matters. The first two are from orders made in a proceeding instituted to inquire into the competency of the appellant to manage herself and her affairs. The other is from an order which is so closely related to such proceeding as to substantially form a part thereof, hence they may well be considered together.

On the 2lth day of January, 1888, an application was made to the County Court of Onondaga county, on the petition of the respondent Alanson Hicks, for a commission, in the nature of a writ de lunático inguvrendo, to inquire of the apparent lunacy of the appellant. That application was granted and a commission in the usual form was issued to Thurston D. Brewster, Esq., directing him to cause the sheriff of Onondaga county to procure a jury, and by such jury to inquire whether the appellant was a lunatic, and whether, by reason of such infirmity, she was incapable of governing herself and managing her affairs and property, and that he should report the inquisition made under the hands and seals of those by whom it was made. In pursuance of the directions and requirements of such commission, the commissioner named, caused the sheriff to summon a jury, and the matter was brought to a hearing before such commissioner and jury. At the conclusion of the hearing, and after the charge of the commissioner, the jurors summoned, unanimously found that the appellant was not a lunatic nor incapable of governing herself or managing her affairs and property. The jurors were, thereupon, discharged by the commissioner without having signed an inquisition as required by section 2332 of the Code of Civil Procedure. An inquisition or return was, however, made and signed by the, commissioner and filed in the office of the clerk of said county on the 12th day of March, 1888.

Subsequent to the filing of such inquisition, the appellant made a motion in the County Court for an order dismissing the proceeding and for costs. This motion was based on the inquisition and the affidavit of the appellant’s attorney. At the same time the respondent moved for an order to set aside the verdict or finding of the jury, and for a new trial to be had at a trial term of said court. This last motion was also founded upon the inquisition and upon affidavits, which show or tend to show that the appellant did not appear before such commissioner and jury, and that they were not given free and unconditional consent to visit and examine her at her residence; and, also, that the jury were improperly approached by a person not connected with the proceeding. After hearing both motions the court denied the appellant’s motion to dismiss the proceeding and for costs, and granted the respondent’s motion for a new trial, and in such order stated the issues to be tided before the court and a jury at a trial term thereof.

The appellant then applied to the Supreme Court and obtained an alternative writ of prohibition directed to the County Court, the county judge and the respondent Alanson Hicks, commanding them to desist from proceeding in the matter and to make return to such writ at a Special Term of that court at a time therein named. To this writ a return was made, and thereupon an order was granted dismissing the writ, with costs. From each of these orders Betsy Ann Mason, the appellant, has appealed.

That the County Court acquired jurisdiction of the proceeding to inquire into the competency of the appellant is not questioned . nor is the regularity of the procedure therein, prior to the hearing before the commissioner and jury, in any way challenged. "What the appellant now claims is, that as the inquisition was not signed by the jury it was irregular and defective; that the court had no power to take any action in the proceeding, except to dismiss; and that the orders denying the appellant’s motion to dismiss the proceeding and granting a new trial therein were not justified, and should be reversed.

That the inquisition returned in this case was irregular and defective there can be no doubt, but that the effect of such irregularity was, as contended by the appellant, is denied. It seems to have been well-settled before the adoption of the Code of Civil Procedure that such an inquisition might be set aside by the court for irregularity, or where it did not conform to the requirements of the statute, or where the facts did not justify the findings of the jury. (2 Crary’s Special Proceedings, 22 ; Fiero’s Special Proceedings, 392; 2 Van Santvoord’s Eq. Pr., 392; Shelford on Lunatics, 112.) If this rule has not been changed by the provisions of the Code, then it is quite obvious that the court possessed the power, in its discretion, to set aside such inquisition and to grant a new trial therein. But the appellant claims that the effect of section 2336 of the Code of Civil Procedure is to restrict the power of the court to grant a new trial to a case in which a proper inquisition has been returned to the court. We do not think that such was the effect or intent of that statute. Mr. Throop’s note to that section is to the effect that that portion of the section which relates to this question was made general in order to leave the practice, as it previously existed, unchanged. We think the rules in regard to granting new trials in such a proceeding as they existed before the Code have not been superseded by the statute. The appellant also claims that even if the court had power to grant a new a trial in this case, still it had no right to change the mode of trial from a trial before a commissioner and a jury to a trial before the court and jury to be held at a trial term of that court. Her contention is that the respondent was entitled to employ but one of the modes of procedure provided for, and having adopted one and failed, he cannot now avail himself of the other. Substantially the same question was before the court In the Matter of Jaeltson (37 Hun, 306), and it was there held that upon the .return of a commission with the inquisition the cou'rt might, in a proper case, direct the issues of fact to be tried before a jury in a County Court.

Our conclusion is that the County Court possessed the power, in its discretion, to grant a new trial in this case, and to direct that it should be had before a jury in the County Court, and as there is nothing in the papers before us which shows that such discretion has been abused, the order denying the appellant’s motion to dismiss such proceeding and for costs and the order granting a new trial should both be affirmed. This leaves for consideration the order dismissing the writ of prohibition which was granted to restrain the County Court and the respondent from proceeding to a new trial in this matter. If we are correct in our conclusion that a new trial was properly granted, then it is quite manifest that the learned judge before whom the writ was returned was fully justified in holding that the County Court had jurisdiction in such proceeding ; that the appellant’s remedy, if any, was by appeal and not by writ of prohibition, and in dismissing the writ, with costs.

It follows that the orders appealed from should be affirmed; each of said orders is affirmed, with ten dollars costs and disbursements in each appeal.

Follett and Kennedy, JJ., concurred.

Orders affirmed, with ten dollars costs and printing disbursements in each case.


source: Caselaw Access Project

author: Martin, J.:

license: Public Domain

text:
    JOHN De GRAW, Respondent, v. THE NATIONAL ACCIDENT SOCIETY, Appellant.

      Certificate of membership, insuring the person against a specified class of accidental injuries only — construction giren to a clause therein excepting “intentional injuries inflicted by the insured or any other person.’’

    In an action, brought upon a certificate of membership, in the nature of a policy of insurance against bodily injuries caused by external, violent and accidental means, issued by the defendant to the plaintiff, it appeared that the certificate contained, among other agreements and conditions, the following: “This certificate does not cover disappearance nor injuries of which there is no visible marks upon the body, nor accident, nor death, nor injury resulting wholly or partly, directly or indirectly; from * "* * intentional injuries inflicted by the insured or my other person. ’’ The complaint alleged that, while the certificate was in full force and operation, the plaintiff sustained certain injuries which were alleged therein to have been inflicted as follows: That at the town of Candor- and on or about the 26th day of January, 1887, the plaintiff was in the nighttime, and without fault on his part or provocation by him, feloniously assaulted and robbed in his store or place of business by some person or persons unknown; that such person or persons unknown, while engaged in committing said felonious assault and robbery upon the plaintiff, struck, maimed and wounded him and cut off his left hand with an axe, hatchet, knife or some other sharp and heavy instrument or weapon; that in consequence of said assault the plaintiff was wholly disabled and physically incapacitated for the pursuance of his usual and ordinary business.
    Upon an appeal from an interlocutory judgment overruling a demurrer, interposed by the defendant on the ground that the complaint did not state facts sufficient to constitute a cause of action, the plaintiff contended that the agreement that such certificate should not cover “ intentional injuries inflicted by the insured or any other person," only applied to such injuries as were intended by the assured, and which were either self-inflicted or which the insured intended to have inflicted by another, and that if the insured did not intend the inflictions of the injuries sustained by him they were accidental and not included in the said exception or agreement.

      Held, that this construction of the agreement could not be sustained.
    That the contract was not a contract of general indemnity, but of limited indemnity only, and was not intended as an insurance of the plaintiff against death ■ or injury, however it might occur, but only to insure him against a specified class of accidental injuries from which an injury intentionally inflicted by the insured or any other person was expressly excluded.

      Travelers’ Insurance Company v. McConkey (17 Ins. Law Jour., 585-590; 38 Alb. Law Jour., 57); Hutchcraft v Travelers’ Insurance Company (Id., 68); Fischer v. Travelers’ Insurance Company (19 Pac. Rep., 425) followed.
    Appeal from an interlocutory judgment entered in the office of the clerk of Tioga county, on July 28, 1888, on an order overruling a demurrer interposed to the complaint herein, and, also, from the said order which was entered in the same office on the same day.

      Stephen W. Collins, for the appellant.

      Mead & Darrow, for the respondent.
   Martin, J.:

This is an appeal from an interlocutory judgment entered on the decision of an issue of law arising upon a demurrer to the complaint herein. The ground of the demurrer was that the complaint did not state facts sufficient to constitute a cause of action. This action was founded on a certificate of membership, in the nature of a policy of insurance against bodily injuries caused by external, violent and accidental means, issued by the defendant to the plaintiff. By such certificate the plaintiff was admitted to the benefits of the defendant society, by which not to exceed $5,000 was to be paid to the plaintiff’s wife in case of his death, twenty-five dollars per week for twenty-six weeks to be paid to the plaintiff in case of an injury which should cause total disability for that time, and in lieu of such weekly indemnity, in case of the loss of an arm, leg, hand or foot, an indemnity of one-half of the amount agreed to be paid in case of death. Said payment to be made within sixty days after proof had been made, satisfactory to the society, that he, within the continuance of his membership, had sustained bodily injuries caused by external, violent and accidental means within the intent and meaning of the agreements and conditions annexed to such certificate. Among the agreements and conditions referred to was the following; “This certificate does not cover disappearance nor injuries of which there is no visible marks upon the body, nor accident, nor death, or injury resulting wholly or partly, directly or indirectly, from * * * intentional injuries inflicted Toy the insured or any other person.”

While this certificate was in full force and operative, the plaintiff sustained certain injuries, which were alleged in the complaint to have been inflicted as follows: “ That at the town of Candor, Tioga county, N. Y., and on or about the 26th day of January, 1887, the plaintiff was, in the night-time, and without fault on his part, or provocation by him, feloniously assaulted and robbed in his store or place of business by some person or persons unknown; that said person or persons unknown, while engaged in committing said felonious assault and robbery upon the plaintiff, did, with an axe, hatchet knife, or some other sharp and heavy instrument or-weapon, strike, maim and wound this plaintiff, and did cut off his left hand, and did beat, strike, wound and bruise, this plaintiff with said sharp instrument and with a billy or slung-shot; that in consequence of said unprovoked assault, and not otherwise, the plaintiff, from the effect of loss of blood and of said beating, swooned and remained unconscious for some time, and afterwards was wholly disabled and physically incapacitated for the pursuit of his usual and ordinary business, and for any and all physical labor and employment, for a period of time exceeding twenty-six consecutive weeks next following said 26th day of January, 1887, and up to the present time; that plaintiff also, by reason of' said unprovoked assault, and not otherwise, lost his left hand as aforesaid, and remains and will, for life, be a cripple by reason of the loss of said hand.”

The defendant, by its demurrer, admits the issuing of the certificate and the injury of the plaintiff as alleged. The only question in this case is, whether the plaintiff’s alleged injury is included in the risks covered by such certificate. That the injury alleged was intentionally inflicted by some unknown persons is quite obvious; hence, if such an injury is not included in the risks covered by such certificate, the plaintiff’s complaint failed to state a cause of action, and the defendant’s demurrer was improperly overruled.

The plaintiff’s chief contention is, that the agreement that such certificate should not cover intentional injuries inflicted by the insured or any other person,” applies only to such injuries as are intended by the insured, and which are either self-íñflicted or which the insured intends to have inflicted by another, and that if the insured did not intend the infliction of the injuries sustained by him, they were accidental and not included in the exception or agreement quoted. We do not think the construction contended for can be sustained. It seems quite manifest that the object and purpose of that provision was .to except from the defendant’s liability, not only such injuries as should be self-inflicted, but also such as should be intentionally inflicted bv any other person. We think this becomes quite obvious when we consider the purpose of this certificate. The contract of the defendant was not a contract of general indemnity, but of limited indemnity only. It was not intended as an insurance of the plaintiff against death or injury, however it might occur, but to insure him against a specified class of accidental injuries only, from which an injury intentionally inflicted by the insured or any other person was expressly excluded.

The case of Travelers’ Insurance Company v. McConkey (17 Ins. Law Jour., 585, 590; 38 Alb. Law Jour., 57) is an important authority upon this question. In that case the "United States Supreme Oourt had under consideration substantially the question involved in the case at bar.. One of the questions there involved was whether the decedent was murdered, and if so, whether his death rendered the defendant liable under its policy. In the opinion of the court in that case it is said: “ The policy expressly provides that no claim shall be made under it where the death of the insured was caused by intentional injuries inflicted by the insured or any other person. If he was murdered, ¿hen his death was caused by intentional injuries inflicted by another person. Nevertheless, the instructions to the jury were so worded as to convey the idea that if the insured was murdered the plaintiff was entitled to recover. In other words, even if death was caused wholly by intentional injuries inflicted upon the insured by another person, the means used were accidental as to' him, and, therefore, the company was liable. This was error. Upon the whole case the court is of the opinion that, by the terms of the contract, the burden of proof was upon the plaintiff, under the limitation we have stated, to show from all the evidence that the death of the insured was caused by external, violent and accidental means; also, that no valid claim can be made under the policy if the insured, either intentionally or when insane, inflicted upon himself the injuries which caused his death, or if his death was caused by intentional injuries inflicted upon him by some other person.” The same construction was given to this provision by the Kentucky Court of Appeals in the case of Hutchcraft v. Travelers' Insurance Company (38 Alb. Law Jour., 68), although it was held in that case that, under the circumstances, it was a question for the jury whether the injury to the plaintiff was intentional or not. (Fischer v. Travelers' Ins. Co., 19 Pac. Rep., 425.) The authorities cited are adverse to the plaintiff’s contention, and we think it must be held that the plaintiff’s injury, as alleged, was not covered by the certificate upon which this action was founded, and hence that the learned judge at Special Term erred in overruling the defendant’s demurrer. It follows, therefore, that the interlocutory judgment appealed from should be reversed, and that the defendant should have interlocutory judgment sustaining such demurrer.

Interlocutory judgment reversed, with costs, and interlocutory judgment sustaining the defendant’s demurrer granted, with costs, but with leave to the plaintiff, on the payment of the costs of this appeal and of the interlocutory judgment, to make and serve an amended complaint within twenty days after notice of the entry of such interlocutory judgment by the defendant.

Follett and Kennedy, JJ., concurred.

So ordered.


text:
    PATRICK DEVEREUX and THE ONEIDA SAVINGS BANK, Respondents, v. SUN FIRE OFFICE OF LONDON, Appellant.

      Rules as to the reformation, of written contracts, entered into by mutual mistake, stated—degree of evidence required to pi’ove the mistake in an insurance policy—■ the testimony of experts as to the usual rates cha/t'ged for premiums on the insurance of othm' simila/r property, will be received,.

    In an action, brought to have a policy issued by the defendant insuring for $100 the farm barn«of the plaintiff Devereux, and the produce therein for $300, to conform to the agreement between the parties, by inserting therein the term of one year in place of sixty days, and by inserting the plaintiff Devereux’s name as the person insured, and when thus reformed to recover the amount of such insurance, the referee found that on the 13th day of December, 1883, the plaintiff Devereux and the defendant, by H. L. Rockwell, its duly authorized agent, entered into a verbal agreement whereby the defendant agreed to insure the property in question for the period of one year, loss, if any, to be paid to the Oneida Savings Bank, as its mortgage interest might appear; that, in pursuance of this agreement, the defendant issued the policy in question, but that it was not written in accordance with the terms of the verbal agreement between the parties, but through mistake, inadvertence or otherwise, on the part of the defendant's said agent, and without the knowledge of Devereux, it was writl en for sixty days instead of for one year, the time agreed upon; and that also, through the mistake or inadvertence of said agent, the name of said Devereux, as the person insured, was omitted from the said policy; that all of such mistakes and omissions were unknown to said Devereux until after the loss had occurred.
    Upon an appeal from a judgment adjudging that the policy of insurance be reformed, and that the plaintiffs recover the sum of $484 damages and costs:

      Held, that the policy should be reformed; that in case of mistake or of fraud, or where there is a mistake by one party and fraud by the other, a court of equity is authorized to, and upon proper proof should, reform the written contract between the parties.
    That, in case of mistake, the mistake must be a mutual one, one in which both parties were involved, so that the contract, as written, failed to carry out the intention or understanding of either.

      That, to justify a 'reformation, of a written contract on the ground of mutual mistake, the evidence should be clear and convincing, and such as to leave no reasonable'doubt as to the existence of the mistake alleged.
    The decisions relating to this subject collated, distinguished and considered by Martin, J.
    That the rule is, not that a party can recover only in a case where there is no conflict in the evidence upon the question; but, that the proper rule is that the party seeking to reform a written agreement must establish the fact that there was a mutual mistake, not simply by a preponderance of evidence, but by such evidence as will show quite conclusively that a mistake has been made, and satisfy the court or jury of such mistake beyond a reasonable doubt.
    On the trial a witness, Ferry, was asked, and allowed to answer the question, ‘ What was the usual rate of premium on the property in question in September, 1888?”

      Held, that a claim made, on the appeal, by the defendant, that this evidence was incompetent because the witness had not seen the property, and his testimony was simply as to what was the usual rate of insurance upon farm property, was not well taken, as the fact that the defendant received a premium which, at the usual rate, would have entitled the plaintiff to a policy for one year, was quite potent evidence upon the question whether the agreement was as claimed by the plaintiff, and, also, for the reason that the above-mentioned objection was" not taken upon the trial.
    The plaintiff asked a witness a hypothetical question which included a description of the property, a statement of the manner in which it was used and by what it was surrounded, and upon such hypothesis the'witness was asked what the usual premium for one year would have been for an insurance for $400 on the said barn and its contents.

      Held, that the evidence was material and competent, and that, as the witness had had two years experience in the insurance business, he was competent to testify to the usual rates of insurance upon the class of property described.
    Appeal from a judgment adjudging the reformation of a written policy of insurance and for $689.95 damages and costs, entered in Madison county December 14, 1887, on the report of a referee.

      A. H. Sawyer, for the appellant.

      Jenkins & Devereux, for the respondents.
   Martin, J.:

On the 12th day of September, 1883, the plaintiff, Patrick Devereux, applied to Hiram L. Rockwell for a policy of insurance for $100 on his frame barn, situated in the town of Lenox, Madison county, H. Y., and $300 on the produce therein. Rockwell was the defendant’s agent and lived at the village of Oneida. He was engaged in making, and authorized by the defendant to make, contracts of insurance, and to issue policies for it against loss or damage by fire. The plaintiff Devereux claims that he made application for a policy of insurance on the property mentioned, for the term of one year, and that the agreement between him and the defendant’s agent was that the defendant should issue to him a policy of insurance on the property in question for the term of one year, from September 18, 1883, the loss, if any, payable to the Oneida Savings Bank as its mortgage interest might appear. In pursuance of this application the defendant, by its said agent, issued a policy of insurance on the property in question for the period of sixty days, from September 13, 1883, and without inserting therein the name of the plaintiff Devereux as the person insured. The plaintiff paid therefor the sum of three dollars, which sum is mentioned in the policy as the amount paid for such insurance. The policy thus issued was retained by the defendant’s agent until after the occurrence of the fire which destroyed the property insured. The property was totally destroyed on the 23d day of January, 1884. It is not denied but that the plaintiffs’ loss equaled the amount for which the policy was issued. Broper proofs of the plaintiff’s loss were duly furnished to the defendant, but the loss was not paid. The defendant claimed that the policy was for sixty days only, and that the term for which it was issued had expired before the fire occurred, that, consequently, it had no insurance on the property destroyed and was not liable to the plaintiffs. The plaintiffs then commenced this action, and asked that the policy should be so reformed ns to make it conform to the agreement between the parties, by inserting therein the term of • one year in place of sixty days, and by inserting plaintiff’s name as the person insured, and when thus reformed to recover the amount of such insurance.

On the trial it was substantially conceeded that the plaintiff’s name should have been inserted in the policy as the person insured, and that the defendant’s agent through mistake omitted to insert it therein. But the question chiefly litigated was, whether the defendant by mistake inserted in the policy sixty days as the term for which the policy was issued, instead of one year.

The plaintiff testified positively that the agreement was that the policy was to be issued for the term of one year. As a circumstance bearing upon that question, the plaintiff also proved by the witnesses Ferry and Wait, who were engaged in the insurance business at or near the village of Oneida, that they knew what the usual rates of insurance were on that class of property; that the usual rate of premium on the property in question in September, 1883, was fifty cents on $100 for a year, or two dollars on $400 for a year; and that for sixty days it was three-tenths of that amount, sixty cents. On the other hand, the defendant’s agent, in substance, testified that the arrangement between the parties was, that the policy in question should be issued for only sixty days. His daily register was also received in evidence, in which the term was stated as sixty days. Rockwell, however, testified that, after the fire, he told the plaintiff “ that there was a bare possibility that there was some mistake; that at the time I was writing sixty-day hop policies,” while the plaintiff and his son both testified that he said, “ of course, we are all liable to make mistakes, and he said, I was making out sixty-day policies, and it is possible I made a mistake in that way; he said, I can’t be certain until I see my daily sheet;” and the plaintiff testified, “ he said possibly or probably I got mixed up with those hop men.” This last evidence was not disputed by Rockwell.

Upon this evidence the referee found that on the 13tli day of September, 1883, the plaintiff Devereux and tire defendant, by said Rockwell, its authorized agent, entered into a verbal agreement, whereby the defendant agreed to insure the property in question for the period of one year; the loss, if any, to be j>aid to the Oneida Savings Bank as its mortgage interest might appear; that, in pursuance of that agreement, the defendant issued the policy in question, but that it was not written in accordance with the terms of the verbal agreement between the parties; but through mistake, inadvertence, ór otherwise, on the part of the defendant’s said agent, and without the knowledge of Devereux, it was written for sixty days instead of for one year, the time agreed upon; and that also, through the mistake or inadvertence of such agent, the name of said Devereux, as the person insured, was omitted from said policy; that all of such mistakes and omissions were unknown to said Devereux until after the loss had occurred. And the referee thereupon held that the policy should be reformed by inserting the name of Patrick Devereux therein as the person insured, and by changing the term for which said policy should run from sixty days to one year, and that the plaintiffs were entitled on the policy, as thus reformed, to recover the sum of $484, to be paid to the Oneida Savings Bank to apply towards the payment of its mortgage.

The appellant contends that the plaintiffs were not entitled to recover in this action, and that the judgment herein should be reversed on the merits. It seems to be well settled, that written instruments may be reformed in cases of mutual mistake, in cases of fraud, and where there is a mistake on one side and fraud on the other. (Gillespie v. Moon, 2 Johns. Ch., 585 ; Welles v. Yates, 44 N. Y., 525; Pitcher v. Hennessey, 48 id., 415; Maher v. Hibernia Ins. Co., 67 id., 283; Hay v. Star Fire Ins. Co., 77 id., 235; Humphreys v. Hurtt, 20 Hun, 398; Waring v. Somborn, 82 N. Y., 605 ; Albany City Savings Institution v. Burdick, 87 id., 40 ; Monne v. Ayer, 52 Supr. Ct. [J. & S.], 139 ; Clute v. Knies, 102 N. Y., 381.)

But the important question here presented is whether the evidence was sufficient to justify a reformation of this policy on the ground of mutual mistake. The defendant earnestly insists that it was not, and claims that its position is fully sustained by the following cases : Bryce v. Lorillard Fire Insurance Company (55 N. Y., 240); Miaghan v. Hartford Fire Insurance Company (12 Hun, 321); Moran v. McLarty (75 N. Y., 25); Paine v. Jones (Id., 593); Casey v. Manhattan Insurance Company (11 Weekly Dig., 198); Mead v. Westchester Fire Insurance Company (64 N. Y., 453); Ford v. Joyce (78 id., 618); Bartholomew v. Mercantile Marine Insurcmce Company (34 Hun, 263); Smith v. Knapp (18 Weekly Dig., 95); Rogers v. Traders' Insurance Company (6 Paige, 584); Little v. Webster (16 N. Y. St. Rep., 107). In the Bryce case it was held that a mistake which will warrant a court of equity to reform a written contract must be a mistake made by both parties, or one by which the intentions of one party have failed of expression, and with it fraud in the other in taking advantage of the mistake, and obtaining a contract with the knowledge that the one dealing with him is in error in regard to its terms. In that case the findings showed that the defendant made the contract it intended to make, and the one it understood that the other party meant to make, and it was held that, under such circumstance the court had no power to reform the contract; moreover, the policy in that case was made in accordance with the application of the assured. In the Miaghan case it was held that to justify the court in reforming a contract the mistake must be one made by both parties to the agreement, so that the intentions of neither party are expressed in it. In that case there was no finding that the parties made any other agreement than that expressed in the contract, and it was, therefore, held that the contract could not be reformed.

In Moran v. McLarty the plaintiff testified that no guaranty was contemplated by the parties, and that nothing was ever said to him about guaranteeing. Two .witnesses for the defendant, however, testified that the plaintiff positively agreed to guarantee immediately before the assignment was drawn, and that the assignment was dictated in his presence. The plaintiff testified that he partially read the instrument and had full opportunity to examine it, but failed to notice the guarantee. The General Term reversed the judgment because the evidence was not sufficiently clear to justify a reformation of the assignment; and the Court of Appeals held that it could not say that the judgment was improperly reversed.

In Paine v. Jones it was held that the evidence authorized the finding of the trial court that the assignee of the defendant, without fraud, obtained just the contract which it, from the first, intended to ask and have, and which it demanded, and that, therefore, the defendant failed to show fraud or mistake authorizing the reformation of the contract.

In the Casey case it was held that certain admissions made by an agent of the defendant were inadmissible as evidence, and the court there said, in an action to reform such an instrument, the evidence must be irrefragable (Shelburne v. Inchiquin, 1 Bro. Ch. C., 338), and relief is not to be given where the evidence is loose, equivocal or unsatisfactory. (Story’s Eq., § 157.)

In the Mead case it was said that to justify a court of equity in changing the language of a written instrument sought to be reformed, in the absence of fraud, it must be established that both parties agreed to something different from what is expressed in the writing, and the proof should be so clear and convincing as to leave no room for doubt; and it was held that the General Term was right in holding that the proofs were insufficient to justify a reformation of the contract. In that case, however, it was said: “ If the defendant had intended to insure the building which was burned, and had received the premium for that insurance, but by a clerical error the wrong description had been inserted in the policy, a case would be made out for reformation, but those facts are not - established.” (See, also, Born v. Schrenkeisen, 110 N. Y., 55.)

In Ford v. Joyce no mutual mistake or fraud was alleged; the referee did not find fraud or mistake, but found an agreement in language differing from the written agreement, the court held that, construing the finding as implying a mistake, the evidence did not justify it, and then said: “ While parol evidence is admissible to show a mistake in a written agreement, yet to justify a reformation of the instrument on that ground, the mistake should be proved as much to the satisfaction of the court as if admitted.”

In the Bartholomew case it was held: In order to justify the reformation of a policy of insurance, upon the ground that by mistake it does not conform to the agreement made by the parties to it, the evidence establishing the mistake must be unquestionable. It must be so clear and convincing as to leave no room for donbt.

In Smith v. Knapp it was said that proof of a claim of mutual mistake should be so clear as to leave no room for doubt. In that case it was held that the finding upon the question was decidedly against the weight of evidence.

In Little v. Webster it was said: “ The rule seems to be well established that in order to justify the court in inserting into a written contract that which has been omitted by the parties, the evidence should be strong, conclusive, and in some cases it has been held should be beyond all reasonable doubt. But perhaps this expression is too strong. There must be at least very conclusive' evidence that by mistake the contract does not represent the intention of the parties, or that by mistake an omission has taken place, or clauses have been inserted which were not intended, or there must be proof of fraud having been perpetrated by one party against the other who seeks the reformation.”

This survey of the authorities leads us to the conclusion : 1. That in cases of mistake or of fraud, or where there is a mistake by one party and fraud by the other, a court of equity is authorized to, and upon proper proof should, reform the written contract between the parties. 2. That in case of mistake, the mistake must be a mutual one, one in which both parties are involved, so that the contract, as. written, fails to carry out the intention or understanding of either; 3. That to justify a reformation of a written contract on the ground of mutual mistake, the evidence should be clear and convincing and such as to leave no reasonable doubt as to the existence of the mistake alleged.

In applying these principles to this case we find that the evidence of the plaintiff is to the effect, that there was a mistake by the defendant’s agent in writing the policy in question for sixty days instead of for one year, and that such a mistake was a mutual one, as it was expressly agreed by both parties that the policy should be written for one year. If no evidence had been gi ven except that introduced by the plaintiff, it would appear quite manifest that the plaintiff would have been entitled to the relief sought and awarded to him by the judgment in this action, as in that case it would have been obvious that there was either a mutual mistake of the parties, or that there was a mistake on the part of the insured and fraud on the part of the insurer. So that the question of the validity of this judgment depends upon the question of the weight and qixality of the evidence, rather than xxpon the qxiestion of the mutuality of the agreement.

But it is said that under the doctrine of the cases cited, the plaintiff was not entitled to recover, because the evidence of the plaintiff was contradicted by Rockwell. If it is true that such an action can only be maintained when there is no conflict in the evidence, then it must follow that a written contract can rarely, if ever, be reformed. If there were no dispute between the paxiies there would be no question for litigation. If where there is a dispute and a consequent conflict in the evidence the pax-ty must fail as a result of such conflict, then the remedy by reforming a contract would be of little or no value, and such relief could rarely, if ever, be obtained. The result of such a rule would be a practical denial of this remedy. While some very strong expressions have been used by the courts and judges in stating the degree of evidence required to justify the reformation of a written contract, yet we think it was never intended to establish the rule that a party can recover only in a case where there is no conflict in the evidence upon the question ; but that the rule intended to be established is, that the - party seeking to' reform a written agreement must establish the fact that there was a mutual mistake, not simply by a preponderance of evidence, but by such evidence as will show quite conclusively that a mistake has been made, and satisfy the court or jury of such mistake beyond a reasonable doubt.

The real question, therefore, is, did the evidence before the referee present a case where, under the rules stated, the plaintiff was entitled to a judgment reforming this policy so as to make it conform to the agreement of the parties as claimed and prpved by him. As we have already seen, the plaintiff testified positively that the agreement between the parties was that the policy should be for the term of one year. lie is corroborated by the fact that the premium paid was the premium which was usually charged for a policy for that amount for the term of one year on property of that character It is true that Rockwell testified that there was no regular rate for insurance on that class of property; and Wait, who was also an agent of the defendant, testified that the rate charged was fair, still, the building insured is described in the policy as a “ farm barn,” and there is nothing in the policy in the form of a consent to the use of the property for hazardous purposes, or to otherwise indicate that it was not ordinary farm property and used as such. We find it quite difficult to believe that the defendant intended 'to charge or that the plaintiff agreed to pay three dollars, or (if the sum of one dollar be deducted for the policy and a survey of the property) two dollars for a policy on this barn for two months when the regular rate was but sixty cents. We think this fact is entitled to great weight in determining the question, and that it tends to show quite conclusively that the agreement was as testified to by the plaintiff. On the other hand, the, defendant’s agent who made the mistake, if one was made, testified positively that the agreement was not as claimed by the plaintiff, but was identical with the written contract. His evidence was, however, somewhat impaired by the fact that when the question first arose he was unable' to assert that he had not made the mistake claimed, and explained that it probably or possibly occurred from the fact that about that time he was engaged. in issuing policies on h'ops for tlie term of sixty days. This explanation shows that the mistake claimed might have easily occurred. Moreover, he is compelled to admit that he made a mistake in not inserting the plaintiff’s name in the policy, which shows that he was at least somewhat liable to mistake. The defendant also claims that this witness was corroborated by his register, and that his daily report would also have corroborated him if it had been admitted in evidence. If this evidence can be regarded as corroboratory of Rockwell’s testimony, the corroboration is, at most, slight. The daily report and register were made from the policy, they were merely copies; they were made at the same time. If the policy was wrong, it would naturally and necessarily follow that the same error might be expected to appear on the register and daily report.

A careful study of the evidence in this case has led us to the concussion that it was sufficient to justify the referee in finding that the agreement between the parties was for a policy for the term of one year, and' that the defendant’s agent intended to issue a policy for one year, but by clerical error he inserted sixty days in the policy as the term for which it was to run, instead of one year, the time intended, and in holding that the policy should be reformed and enforced.

On the trial the witness Ferry was asked: “ What was the usual rate of premium on the property in question in September, 1883 ? ” This question was objected to by the defendant as immaterial and improper.” The objection was overruled and the defendant excepted. The defendant now claims that this was error, because the witness had not seen the property, and his testimony was simply as to what was the usual annual rate of insurance upon farm property, "We do not think this exception well taken. The evidence was material and competent. The fact that the defendant received a premium, which at the usual rate would have entitled the plaintiff 'to a policy for one year, was quite potent evidence upon the • question whether the agreement was as claimed by the plaintiff. Moreover, the objection was not placed upon the ground that the witness had not seen the property, and, hence, if it were otherwise valid, it would not be available here.

The plaintiff asked the witness Hatch a hypothetical question, which included a description of the property, how used and by what surrounded; and upon such hypothesis the witness was asked what the usual premium for one year would have been for an insurance for $400 on the said barn and its contents. This was objected to, first, as immaterial and incompetent; second, that the witness was not shown competent to give &n opinion. The objections were overruled and the defendant excepted. The defendant claims that this was error, because the witness had not seen the property. We do not think this exception valid. The evidence was material and competent; the witness had had two years’ experience in the insurance business; he was competent to testify to the usual rates on the class of property described.

As no other questions are raised by the appellant, it follows from these considerations that the judgment appealed from should be affirmed.

Judgment affirmed, with costs.

Follett and Kennedy, JJ., concurred.

Judgment affirmed, with costs.


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    WATERTOWN THERMOMETER COMPANY, Respondent, v. JULIA A. POOL, HERBERT W. POOL and JOHN L. POOL, Appellants.

      When a restriction upon the right of a vendor to engage in the ■manufacture of certain articles which he has sold, together with the tyrade-marli, to another person, will not he held to he void, as in restraint of trade, because it extends over the whole of the United, States.

    In an action brought to recover damages for a violation of an agreement made by the defendants not to engage in the manufacture of thermometers, etc., it was alleged in the complaint that the plaintiff was a corporation engaged in the manufacture and sale of thermometers and storm glasses, with its principal place of manufacture at Watertown, U. Y.; that, on August 36, 1887, the defendant Julia A. Pool, in consideration of $5,000, by an agreement in writing and under seal, sold to two persons therein named 100 shares of stock of the plaintiff corporation, and assigned to them the trade-mark used on thermometers and storm glasses manufactured by her; authorized the transfer of such trade-mark to the plaintiff; and also agreed “not to engage in the manufacture of any thermometers of any kind or description, nor of any storm glasses, at any place within the United States, at any time within a period of ten years from the date ” thereof; and that, for the same consideration, the defendant Herbert W. Pool agreed that he 'would not, in any manner whatever, engage in the manufacture of thermometers of any kind, nor of storm glasses, within the said period of ten years.
    It also alleged that, before the commencement of this action, the said assignees transferred to the plaintiff all the rights secured by the said agreement; that plaintiff’s business, in the manufacture and sale of thermometers and storm glasses, required for its full and proper development the entire territory embraced under such agreement and a considerable period of time; that the purchase of such stock of the defendant Julia,which was done at the request of the defendant Herbert, was made and said stock was paid for by the stockholders of the plaintiff, in consideration of the full development of such business within the United States for the period of ten years, without any hindrance, obstruction or interference on the part of the defendants Julia or Herbert, or either of them, as provided under such agreement. It also alleged that the defendants were conducting the business of manufacturing and selling thermometers and storm glasses at Oswego, FT. Y., under the - name of the Oswego Thermometer Works, and that the defendants Julia and Herbert had enticed a number of the plaintiff’s employees to leave its employment to its injury and damage, and that the plaintiff, before this action was commenced, requested them to desist from the further manufacturing of thermometers and storm glasses, and they refused to do so.
    'The only question raised by the appellants was as to the validity of the contract upon which the action was based, they contending that it was in general restriction of trade and consequently void, this claim being founded not on the time but on the territory to which such restriction extended.
    Upon an appeal from an interlocutory judgment overruling the defendant’s demurrer to the complaint:

      Held, that a restriction which is no greater than the interest of the vendee requires, and by giving which the vendor has obtained an increased price for what he has sold, is valid, though it extends throughout the whole country or kingdom.
    Cases bearing upon this question collated and considered by Martin, J.
    That as, in this case, the defendants by their demurrer admitted all the allegations of the complaint, it was clear that the restraint, though general, was at the same time co-extensive, only, with the interest to be protected and the benefit meant to be conferred by the agreement; that it imposed no restriction upon the defendants which -was not beneficial to the plaintiff, or which was unnecessary for its reasonable protection, and that it was induced by a consideration which made it reasonable for the parties to enter into it; that the interlocutory judgment should be affirmed, with costs.
    Appeal from an interlocutory judgment, entered in the Jefferson county clerk’s office June 19, 1888, upon an order overruling a demurrer to the complaint, with the privilege to answer within twenty days, upon payment of forty dollars and forty-nine cents costs.

      Nutting & Nutting, for the appellants.

      Hannibal Smith, for the respondent.
   Martin, J.:

This is an appeal from an interlocutory judgment overruling the defendants’ demurrer to the complaint herein. The demurrer was upon the ground that the complaint does not state facts Sufficient to constitute a cause of action. By demurring to the complaint the defendants admit that the plaintiff is a domestic corporation engaged in the manufacture and sale of thermometers and storm glasses, with its principal place of manufacture at Watertown, N. Y.; that ■on August 26, 1887, the defendant Julia A. Pool, in consideration ■of $5,000, by an agreement in writing and under seal, sold to Osee W. Wilmot and Byron B. Taggart 100 shares of the stock of the plaintiff corporation, and assigned to them the trade-mark used on thermometers and storm glasses manufactured by her, authorized the transfer of such trade-mark to the plaintiff, and also agreed “ not to engage in the manufacture of any thermometers of any kind or description, nor of any storm-glasses, at any place within the United States, at any time within a period of ten years from the date hereof; ” that, for the same consideration, the defendant Herbert W. Pool agreed that he would not, either as principal or agent, in any manner whatever, engage in the manufacture of thermometers of any kind, nor of storm glasses, within said period of ten years; that, before the commencement of this action, Wilmot and Taggart transferred to the plaintiff all the rights secured by said agreement; that plaintiff’s business in the manufacture and sale of thermometers and storm glasses requires, for its full and proper development, the entire territory embraced in such agreement, and a considerable period of time; that the purchase of such stock of the defendant Julia, at the request of the defendant Herbert, was made and paid for by the stockholders of the plaintiff in consideration of the full development of such business within the United States for a period of ten years, without any hindrance, obstruction or interference on the part of the defendants Julia and Herbert, or either of them, as provided in such agreement; that the defendants are conducting the business of manufacturing and selling thermometers and storm glasses at Oswego, N. Y., under the name of the Oswego Thermometer Works; that the defendant Julia has furnished the capital and the defendant Herbert has control and management of the business; that the name of the defendant John L. Pool is used as a pretense and cover to enable the defendants Julia and Herbert to violate their said agreement, and to conduct such business in violation thereof; that the defendants Julia and Herbert have induced a number of plaintiff’s employees to leave its employment, to its injury and damage; that the plaintiff, before this action was commenced, requested the defendants to desist from the further manufacture and sale of thermometers and storm glasses, which they refused, and still refuse to do; that, by reason of the violation of such agreement, the plaintiff has sustained $5,000 damages.

The only question raised by the appellants is as to the validity of the contract upon which this action is based. They contend that it is in general restriction of trade, and, consequently, void. This claim is not founded on the time, but on the territory to which such restriction extends. The decision at Special Term was based on the case of the Diamond Match Company v. Roeber (106 N. Y., 473). The appellants now contend that that case is not an authority for holding that the contract under which this action was brought was valid. They insist that it is clearly distinguishable from this, as in that case the restriction was limited, while in this it is general. The two cases are somewhat different. In the Match Company case, of the whole United States and territories, the State of Nevada and Territory of Montana were excepted from the operation of the agreement, while in the case at bar the agreement includes the whole United States. We think it must be admitted that the precise question involved in this case was not directly decided in the case referred to.

But the question here involved was quite thoroughly discussed, and the authorities bearing upon it fully reviewed in the opinion delivered by the court in that case. Judge Andrews, who delivered the opinion, says: “ The tendency of recent adjudications is marked in the direction of relaxing the rigor of the doctrine that all contracts in general restraint of trade are void, irrespective of special circumstances. Indeed, it has of late been denied that a hard and fast rule of that kind has ever been the law of England. (Rousillon v. Rousillon, L. R., 14 Ch. Div., 351.) * * * When the restraint is general, but at the same time is co-extensive only with the interest to be protected, and with the benefit meant to be conferred, there seems to be no good reason why, as between the parties, the contract is not as reasonable as when the interest is partial and there is a corresponding partial restraint. And is there any real public interest which necessarily condemns the one and not the other ? It is an encouragement to industry and to enterprise in building up a trade, that a man should be allowed to sell the good will of the business and the fruits of his industry upon the best terms he can obtain. If his business extends over a continent, does public policy forbid his accompanying the sale with a stipulation for restraint co-extensive with the business which he sells ? If such a contract is permitted, is the seller any more likely to become a burden on the public than a man who having built up a local trade only, sells it, binding' himself not to carry it on in the locality ? Are the opportunities for employment and for the exercise of useful talents so shut up and hemmed in that the public is likely to lose a useful member of society in the one case and not in the other? Indeed, what public policy requires is often a vague and difficult inquiry. It is clear that public policy and the interests of society favor the utmost freedom of contract, within the law, and require that business transactions should not be trammeled by unnecessary restriction.” * * * “ It has sometimes been suggested that the doctrine that contracts in general restraint of trade are void, is founded in part upon the policy of preventing monopolies, which are opposed to the liberty of the subject, and the granting of which by the king under claim of royal prerogative led to the conflicts memorable in English history. But covenants of. the character of the one now in question operate simply to prevent the covenantor from engaging in the business which he sells so as to protect the purchaser in the enjoyment of what he has purchased. To the extent that the contract prevents the vendor from carrying on the particular trade, it deprives the community of any benefit it might derive from his entering into competition. But the business is open to all others, and there is little danger that the public will suffer harm from lack of persons to engage in a profitable industry. Such contracts do not create monopolies. They confer no special or exclusive privilege. If contracts in general restraint of trade, 'where the trade is general, are void as tending to monopolies, contracts in partial restraint where the trade is local, are subject to the same objection, because they deprive the local community of the services of the covenantor in the particular trade or calling, and prevent his becoming a competitor with the covenantee. We are not aware of any rule of law which makes the motive of the covenantee the test of the validity of such a contract. On the contrary, we suppose a party may legally purchase the trade and business of another for the very purpose of preventing competition, and the validity of the contract, if supported by a consideration, will depend upon its reasonableness as between the parties.”

It seems to us that the reasoning of the learned judge in that case fully covers the question under consideration, and is so satisfactory that we feel justified in adopting it in this case ; moreover, it seems to be sustained by the cases cited in the opinion. (Whittaker v. Howe, 3 Beav., 383; Jones v. Lees, 1 Hurl. & N., 189 ; Rousillon v. Rousillon, L. R., 14 Ch. Div., 351; Leather Cloth Co. v. Lorsont, L. R., 9 Eq., 345 ; Morse Twist Drill Co. v. Morse, 103 Mass., 73; The Printing and Numerical Registering Co. v. Sampson, L. R., 19 Eq., 462; Ainsworth v. Bentley, 14 Weekly R., 630; Stiff v. Cassell, 2 Jur. [N. S.], 348; Ingram v. Stiff, 5 Jur. [N. S.], 947 ; Hodge v. Sloan, 107 N. Y., 248 ; Leslie v. Lorillard, 110 N. Y., 533.)

In Jones v. Lees it was held that a covenant not to sell stubbing and roving frames not fitted with plaintiff’s invention during the continuance of the defendant’s license from the plaintiff to use and sell the patented inventions was valid, although it extended to all England. In the Leather Cloth Company case it was held that a contract not to manufacture or sell patent leather cloth in any part of Europe was not invalid as against public policy. In The Printing and Numerical Registering Company v. Sampson an agreement by the vendor of a patent to assign all after acquired patent-rights of like nature obtained during his lifetime in all Europe was held good. In the Rousillon case a contract not to engage in the sale of champagne, without limit as to space, was enforced. In Whittaker v. Howe a contract made by a solicitor not to practice in any part of Great Britain was upheld. In the Morse Twist Drill Company case an agreement by a vendor of certain patents and machinery to transfer all improvements in the business and manufacture, and that he would at no time assist, aid or encourage any competition against the business, was held valid.

In Ainsworth v. Bentley the plaintiff purchased an established magazine. The defendant agreed not to publish another of like nature. The defendant arranged to publish one that came within the restriction. It was claimed that the agreement was void as being in restraint of trade and unlimited, but an injunction was granted against violating the contract. In Stiff v. Gassed the defendant agreed to write two tales for a paper, and that he would write for no other which should be sold for less than a certain price, for the space of one year. The restriction was held valid, although there was no limitation as to space. In Ingram y. Stiff a periodical was sold with an agreement by the vendor not to publish, alone or in partnership, any other periodical similar to it. This agreement was held valid. In Hodge v. Sloan it is said, “Assuming, with the respondent, that the covenant is in restraint of trade, it is still valid if it imposes no restriction upon one party which is not beneficial to the other, and was induced by a consideration which made it reasonable for the parties to enter into it or, in other words, if it was a proper and useful contract, or such as could not be disregarded without injury to a fair contractor.”

The cases cited seem to sustain the doctrine that a restriction which is no greater than the interest of the vendee requires, and by giving which the vendor has obtained an increased price for what he sold, is valid, though it extended through the whole kingdom or country. In this case the defendants, by their demurrer, admit that the business of the plaintiff in the manufacture and sale of thermometers and storm glasses required for its full and proper development the entire territory embraced within the United States, and that one of the considerations that induced the plaintiff to make such purchase and pay the consideration named was such restriction, which would enable it to fully develop' its business throughout the whole United States, without interference on the part of the defendant. Assuming this, as we must, and it seems quite clear that the restraint, though general, is at the same time co-extensive only with the interest to be protected, and with the benefit meant to be conferred. by this agreement; that it imposes no restriction upon the defendants which is not beneficial to the plaintiff, or which was unnecessary for its reasonable protection; and that it was induced by a consideration which made it reasonable for the parties to enter into it.

We are of the opinion that upon the facts and under the circumstances alleged in the complaint, and admitted by the demurrer, the contract in question should be held valid, and that the Special Term properly overruled the defendant’s demurrer.

Interlocutory judgment affirmed with costs, but with leave to the defendants within twenty days from the service of a copy of the judgment of affirmance herein, on the payment of the costs of this appeal and the costs included in the judgment appealed from, to' make and serve an answer to the complaint herein.

Follett, J., concurred; Kennedy, J.. not sitting.

So ordered.


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    JOHN W. SMITH, Respondent, v. MARTHA SMITH, Appellant, Impleaded with MARY LILLY.

      A parol agreement, made by an owner of a lot, that if a p&rson should build thereon he might sell the building, gives siteh person a Hem for the amount expended on the land.

    Upon the trial of an action, brought by the plaintiff, to set aside a conveyance of certain premises made by him, through the defendant Lilly, to his wife, the defendant Martha Smith, or to compel his wife to reconvey the premises to him, and to establish an equitable lien thereon for the purchase-price of the premises and the money expended by him in erecting a building thereon, the trial court found, that, in 1879, the plaintiff, with his own means, built upon a portion of said premises a brick building at an expense of $4,600, and that in the spring of 1879, and prior to such building, he told his wife that he had some money in the bank, drawing only three and one-half per cent interest, and that he could take it and build on a portion of the property and get more for his money than in the hank; that she replied, that would be a good thing, and that he could go on and build there, and if he got in any way distressed, in any shape or manner, he had a right to sell the building; that it was at his disposal at any time, and that he replied all right, he would go on and build; that thereupon, relying upon this arrangement, he went on and built; also, that his wife, the defendant Martha Smith, had refused to reconvey upon his demand, and that by reason of the building the property was increased in value by the amount of $4,500. ■ r

      Held, that the arrangement made between the parties as to the erection of such building and the employment of the plaintiff’s money for that purpose, was, in effect, an agreement that the plaintiff should, if he so invested it, have a lien thereon for the amount, with the right to sell, if necessary, and recover the same, and that a judgment, adjudging that the plaintiff had acquired a lien on the said building,including the land upon which it stood, for $4,500, and providing that if the said sum, interest and costs were not paid by the defendant, the building and land should be sold, and the avails of the sale, as far as necessary, be employed to pay the amount thus expended, should be affirmed.

      King’s Heirs v. Thompson (9 Pct. [U. S.], 204); Chase v. Peck (21 N. Y., 581); Hasted v. Ingraham (75 id., 255-257); Perry v. The Board of Missions, etc., of Albany (102 id., 99) followed.
    That this right of lien was founded not only upon the agreement between the parties, but also upon the fact that it would be contrary to natural justice to allow the defendant to retain the building, erected upon her land by the plaintiff, without compensating him for the money thus expended.
    That the plaintiff’s right to recover was not barred by the statute of frauds, as a parol contract in respect to land cannot be avoided in equity, because not in writing, where there has been a part performance of it.
    Appeal from a judgment entered in the Onondaga county-clerk’s office on the 17th of April, 1888, upon the trial of the action at the Onondaga Circuit, by the court, without a jury, in favor of the plaintiff and against the defendant Martha Smith. .

      M. M. Waters, for the appellant.
    Baldwin, Lewis & Kennedy, for the respondent.
   Martin, J.:

The plaintiff and the defendant Martha Smith are husband and wife. In 1863 the plaintiff owned the premises described in the complaint. Upon the twenty-first day of September in that year the plaintiff, through the defendant Lilly, conveyed the premises in question to his wife. By this action the plaintiff sought, first, to set aside the conveyance from him, through the defendant Lilly, to his wife, or to compel her to reconvey the premises to him; second, to establish an equitable lien thereon for the purchase-price of the premises and the moneys expended by him in erecting a building thereon. The court denied the plaintiff the relief sought, except that it held that the plaintiff was entitled to a lien on a portion of said premises for the sum of $4,500 for money expended by him in improvements made thereon. As the plaintiff has not appealed, the only question involved is, whether the plaintiff was entitled to a lien on said premises for the money thus expended by him.

The trial court found that, in 1879, the plaintiff, with his own means, built upon a portion of said premises a brick block at an expense of four thousand five hundred dollars; that in the spring of 1879, and prior to such building, he told his wife he had some money in the bank drawing only three and a half per cent interest, and he could take it and build a block on a portion of the property and get more for his money than in the bank, and she replied that would be a good thing, that he could go on and build there, and if he got any ways distressed, in any shape or manner, he had a right to sell the block, that it was at his disposal at any time; and he replied, all right, he would go on and build it; that thereupon, relying upon this arrangement, he went on and built the block; ” that the defendant Martha, upon demand, declined to reconvey, and claimed that the plaintiff had no interest in the property; that, by reason of the building of the block, the property was increased in value by the amount of $4,500. We think that the facts, as found, are fairly established by the evidence, and that the findings should be sustained.

Upon these facts the court held that the plaintiff acquired a lien on said block, including the land upon which it stands, for $4,500, and provided that if the said sum, interest and costs were not paid by the defendant, the block and land should be sold and the avails of the sale, as far as necessary, employed to pay the amount thus expended.

While the court, at Special Term, did not expressly find that it was the agreement or understanding of the parties that the plaintiff was to have a lien upon the premises for tire money expended by him in the erection of such block, yet, it seems to us that such is a fair construction of the "findings of the court and of the evidence upon which such findings are based. The arrangement was that the plaintiff was to put his own money into a building upon defendant’s land, that he might derive a larger revenue from it than he would by leaving it on deposit in the bank, and when built, if he got in any way distressed, he was to have a right to sell the building, ,it was to be at his disposal. We are of the opinion that the arrangement made between the parties as to the erection of such building and the employment of the plaintiff’s money for that purpose was, in effect, an agreement that the plaintiff should, if he so invested it, have a lien thereon for the amount, with a right to sell, if necessary, to recover the same. Assuming, then, as I think we must, that such was the arrangement between the parties, and it follows that the judgment appealed from was proper if such an agreement can be enforced either at law or in equity.

In Pomeroy’s Equity Jurisprudence it is, in substance, said that every express executory agreement, whether verbal or in writing, whereby a party indicates an intention to make some particular property, real or personal, a security for a debt or other obligation, or whereby the party promises to convey or transfer the property as secm'ity, creates an equitable lien on the property so indicated, at least, as between the parties. (3 Pomeroy’s Eq. Jur., 233 et seq.)

Courts of equity have not confined the doctrine of compensation or lien for repairs and improvements to cases of agreement or joint purchases. They have extended it to other cases where the party making the repairs and improvements has acted bona fide and innocently and there has been a substantial benefit conferred on the owner so that ex aequo et bono he ought to pay for such benefit. (2 Story’s Eq. Jur., § 1237.)

The case of King's Heirs v. Thompson (9 Pet. [U. S.], 204), was a case quite similar to the case at bar. And it was there held that a party who expended his money for repairs and improvements on premises of another was entitled to an equitable lien or mortgage for the amount so expended, and that the property should be sold and the proceeds first applied to the payment of the money so expended in such improvements.

In Chase v. Peak (21 N. Y., 581), where upon receiving a grant cf land the grantee executed an agreement, not under seal, to support and maintain the grantor, pledging for that purpose the produce of the land, and should that prove insufficient, appropriating the entire fee, it was held that the agreement being the consideration of the grant, takes effect as an equitable mortgage of the land.

In Husted v. Ingraham (75 N. Y., 255-257), where certain carpets were delivered upon an agreement that the purchase-price should be secured by a mortgage thereon, it was held that the agreement could have been specifically enforced in equity, and constituted an equitable lien upon the property against the purchasers and all persons claiming to own it, except bona fide purchasers having no notice of the lien. The case of Hale v. Omaha National Bank (49 N. Y., 626) is to the same effect.

In Freeman v. Freeman (43 N. Y, 34) it was held that a parol promise by the owner of land to give it to another, accompanied by actual delivery of the possession thereof to him, will be enforced in equity by a decree for specific performance, where the promisee, induced by such promise, has made substantial improvements and considerable expenditures upon the premises with the knowledge of the promisor, and that the real ground upon which equitable jurisdiction is exercised in such cases, either of sale or of gift, is to prevent a fraud being practiced upon the parol purchaser or donee.

In Perry v. Board of Mission, etc., of Albany (102 N. Y., 99), the Diocesan Convention of the Protestant Episcopal Church of the Diocese of Albany appointed a committee to take steps for procuring a residence for the bishop of the diocese. The plaintiff, under the advice of the bishop, and with the consent of the committee, purchased certain premises for the purpose specified; and at the request of the bishop commenced making necessary repairs and improvements. At the annual meeting of the convention the committee made a report, stating the fact as to the piu-chase, and referring to the repairs and improvements, which was adopted and a resolution passed directing a transfer of the title to the property to the defendant, to be held and used as a residence for the bishop, and authorizing and directing defendant to execute a bond and mortgage thereon to secure the payment of a prior mortgage, and of the sum advanced for the repairs and fitting up of the saíne for the episcopal residence.

At the time of the passage of the resolution the work of repair was in progress, but only a small portion thereof had been paid for. The plaintiff went on and completed the work, advancing the money to pay for the same. The premises were conveyed to defendant as directed, and at a regular meeting of tibe board a resolution was passed accepting the conveyance and directing the execution of a bond and mortgage for a sum specified, to be applied to the payment of the prior mortgage, and the expenses- of the repairs and improvements. This was done and the moneys realized thereon were applied as directed, but ^ere insufficient to pay the whole amount so advanced by the plaintiff. In that case it was held, that the plaintiff was entitled to a lien in the nature of a mortgage upon the premises for the balance, both because of the special agreement embodied in the resolution of the convention and under the general doctrine of equity, which gives a right equivalent to a lien when the rights of parties cannot be otherwise secured. In delivering the opinion in that ease the court says: The plaintiff’s case is within the general doctrine of equity, which gives a right equivalent to a lien when in no other way the rights of parties can be secured. The advances were directly for the benefit of the real estate; they were approved by the convention by whose directions the title was conveyed to the defendant, but neither the convention nor the defendant have incurred any corporate liability, and while it may be said that the advances were made on the promise.of, or in the just and natural expectation that a mortgage would be given,, it is also true that they were made on the credit of the property, for the improvement of which they were expended. The repairs and improvements were permanently beneficial to it, made in good faith, with the knowledge and approbation of the parties interested and accepted by them, not as a gratuity, but as services for which compensation should be given. The plaintiff’s right to remuneration is clear, and unless the remedy sought for in this action is given, there will be a total failure of justice.” (Willetts v. Brown, 42 Hun, 140; Williams v. Ingersoll, 23 id., 284; affirmed, 89 N. Y., 508 ; Burdick v. Jackson, 7 Hun, 488; In the Matter of Howe, 1 Paige, 125: Lanning v. Tompkins, 45 Barb., 308; Payne v. Wilson, 74 N. Y., 348.)

This examination of the authorities seems to render it quite manifest that the plaintiff acquired an interest in or lien upon the premises in question for the money expended by him thereon which can be enforced by a court of equity. This right or lien is founded not only upon the agreement between the parties, but also upon the fact that it would be contrary to natural justice to allow the defendant to retain the building erected upon her land by the plaintiff without compensating him for the money thus expended. The plaintiff expended his money for the direct benefit of the defendant’s real estate. The building erected by, him was a permanent improvement to such real estate. This improvement was made in good faith, with the, knowledge and approval of the plaintiff. The defendant incurred no individual liability by reason thereof, but the building was erected with the understanding that the plaintiff was to have a right to withdraw his money thus invested by a sale of the property if necessary. The erection of this building was permitted and accepted by the defendant in pursuance of such understanding. The plaintiff’s right to receive the amount thus expended by him seems to be clear, and unless the remedy awarded in this action be upheld, there will be a failure of justice. We think the plaintiff’s case is within the doctrine held in the cases cited, which gives a right equivalent to a lien where the rights of the parties can be secured in no other way.

Nor do we think the plaintiff’s right of recovery barred by the statute of frauds. A parol contract, in respect to land, cannot be avoided in equity because not in writing, where there has been a part performance of it. (Freeman v. Freeman, Burdick v. Jackson, supra; Pomeroy on Specific Performance, 30.)

These considerations lead us to the conclusion that the judgment -appealed from should be affirmed.

Judgment affirmed, with costs.

Follett and Kennedy, JJ., concurred.

Judgment affirmed, with costs.


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    CATHARINE McCARTY, Respondent, v. ALVIN F. WELLS, Appellant.

      What evidence authorizes a jury to find that a death, was caused by liqwr sold by the defendant—plaintiff is not required to prove that the intoxication was the immediate and proximate cause of his death — evidence of intoxication when lea/ving the saloon of the defendant is competent — exemplany damages.

    In an action, brought under the civil damage act by the plaintiff, to recover for an injury to her means of support which she claimed to have sustained by the death of her husband, William McCarty, which was alleged to have been caused by his intoxication, produced in whole or in part by intoxicating liquors sold or given to him by the defendant, it was proved on the trial that when the plaintiff’s husband returned from his work on the day of his death he was sober; that he went to the saloon kept by the defendant; that he was there thirty-five or forty minutes; that while there he was seen to drink a glass full of whisky; that when he left the defendant’s place he was at least partially intoxicated.
    Proof was also given of his drinking at other places, and that at ten o’clock in the= evening he was very much intoxicated, so that he appeared unable to walk and was in charge of two men who held him, one on each side, and were-encouraging him to walk; that after this he was not seen by any of the witnesses until his body was found in the mill-race where he was drowned; the water at the place where his body was found being from two and one-half to four feet in depth.

      Held, that the question whether the liquor furnished by the defendant to the decedent caused his intoxication, either in whole or in part, was one of fact to be determined by the jury; and that the court properly declined to hold, as a matter of law, that the evidence was insufficient to establish that fact, and that the finding of the jury in the plaintiff’s favor should be upheld.
    The defendant further claimed that the plaintiff was bound to show that the intoxication was the immediate and proximate cause of his death.

      Reid, that the statute under which this action was brought makes no distinction between cases in which the loss of the means of support is the direct result of the intoxication, and those in which it is the remote result thereof; it only requires that it should be established that the loss Was the result of such intoxication, caused in whole or in part by liquor sold by the defendant.
    On the trial witnesses were permitted, under the objection and exception of the defendant, to testify that the deceased was drunk when, or soon after, he left the defendant’s saloon.

      Reld, that an objection, made upon the ground that the question called for an opinion and was incompetent, was not well taken.
    The defendant offered to prove by his own testimony that when he received his license the commissioners issuing it informed him that he could sell whisky under such license, and that he believed it, this evidence being 'offered to show the defendant’s good faith.

      Held, that a claim by the defendant that he was entitled to make the proof offered, to avoid exemplary damages, could not be sustained, as proof which had been offered by the plaintiff to establish the right to such exemplary damages had been excluded on the trial upon the defendant’s objection that no allegation as to such damages was .contained in the complaint.
    Appeal by the defendant from a judgment entered in the Oneida county clerk’s office on March 20, 1888, on the' verdict of a jury after a trial at the Oneida Circuit, and from an order denying the defendant’s motion for a new trial, made upon the minutes of the justice presiding at the trial, and heard in this court on a case which contained all the evidence.

      J. R. McCabe, for the respondent.

      William Kernan, for the appellant.
   Martin, J.:

This action was brought under the statute known as the civil damage act. (Laws 1873, chap 646.) The plaintiff sought to recover for the injury which she claimed to have sustained to her means of support by the death of William McCarty. At the time of his death William McCarty was the husband of the plaintiff. On April 16, 1887, he was drowned. His death is alleged to have been caused by his intoxication. His intoxication is claimed to have been produced, in whole or in part, by intoxicating liquors sold or given him by the defendant.

On the trial it was proved that when the plaintiff’s husband returned from his work on the day of his death he was sober; that he went to the saloon kept by the defendant; that he was there thirty-five or forty minutes ; that while there he was seen to drink a glass full of whisky; that when he left the defendant’s place he was at least partially intoxicated. There was also proof of his drinking at other places during that evening, and that at ten o’clock in the evening he was very much intoxicated, so that he appeared unable to walk, and was in charge of two men who had hold of him, one on each side, and were encouraging him to try to walk. After this he was not seen by any of the witnesses until his body was found in a mill-race where he was drowned. The water at the place where his body was found was from two and a half to four feet in depth. Several witnesses were called by the defendant who testified that he was sober when and after he left the defendant’s saloon. The question whether the decedent’s intoxication was produced in whole or in part by intoxicating liquors given or sold to him by the defendant, and if so, whether such intoxication was the proximate cause of his death, were submitted to the jury in a charge to which no exception was taken. The jury found upon both of those questions in favor of the plaintiff.

The defendant now contends that the evidence was insufficient to support the finding of the jury that the liquor furnished by the defendant to the decedent caused his intoxication, either in whole or in part, and that the court should have so held. There is no dispute but that the deceased purchased and drank at least one glass full of whisky at the defendant’s saloon on the evening before his death. Three witnesses testify that, very soon after*, he was so intoxicated that he staggered. The defendant called several witnesses, who saw him at about the same time, who testify that he was not intoxicated. Thus the question whether the liquor furnished by the defendant to the decedent caused his intoxication, • either in whole or in part, was one of fact to be determined by the jury, and the court properly declined to hold as a matter of law that the evidence was insufficient to establish that fact. That question was properly submitted to the jury, and the finding of the jury in the plaintiff’s favor .is fairly sustained by the evidence and should be upheld. (O’Connor v. Conzen, 23 Weekly Dig., 533.)

The defendant also claims that the evidence was not sufficient to warrant the jury in finding that the death of the deceased was in consequence of his intoxication, and that the court erred in not so holding. We do not think this claim can be upheld. We think the evidence was sufficient to require the submission of that question to the jury, and to sustain their finding thereon. It is quite manifest that the intoxication of the plaintiff’s husband was the cause of his death. If he had been in possession of his natural faculties, it is extremely difficult to conceive how he could have fallen into this mill-race, or, if he had fallen in, how it was possible that he could have been drowned in water of that depth.

The defendant further claims that “ the plaintiff was bound to show that the intoxication was the immediate and proximate cause of death.” The statute under which this action is brought makes no distinction between cases in which the loss of the means of support is the direct result of the intoxication and those in which it is the remote result thereof. It only requires that it should be established that the loss of the means of support is the result of such intoxication. Both direct and consequential injuries are plainly included in the remedy given. The question was not whether the death of the deceased was the natural, reasonable or probable consequence of the defendant’s act; but it was enough if intoxication, caused in whole or in part by liquor sold by the defendant, was the cause of the death of the plaintiff’s husband, if by reason thereof the plaintiff’s means of support were injuriously affected. (Beers v. Walhizer, 43 Hun, 254; Blatz v. Rohrbach, 42 id., 402; Volans v. Owen, 74 N. Y., 529; Mead v. Stratton, 87 id., 496; Neu v. McKechnie, 95 id., 636.) We are of the opinion that the evidence was sufficient to warrant the jury in finding that the death of the plaintiff’s husband Avas caused by his intoxication ; that his intoxication was caused, in whole or in part, by liquor furnished him by the defendant; and in rendering a verdict for the plaintiff for the injury she had sustained to her means of support by reason of 'his death.

On the trial witnesses were permitted, under the objection and exception of the defendant, to testify that the deceased was drunk when, or soon after, lie left the defendant’s saloon. The objection was upon the ground that it called for an opinion and Avas incompetent. We do 'not think the exception well taken. The ruling was proper. (People v. Eastwood, 14 N. Y., 562.)

The defendant offered to prove by his own testimony that, when he received his license, the commissioners issuing it informed him that he could sell whisky under such license, and that he believed it. This was offered to show the defendant’s good faith. The evidence was objected to and excluded. This was not error. The appellant now contends that he was entitled to make the proof offered to avoid exemplary damages. This contention would have had more merit if the question of exemplary damages had been involved in the case. While the plaintiff was introducing her evidence she offered proof for the purpose of establishing a basis for exemplary damages. The defendant then claimed that there was no allegation in the complaint which would justify the admission of such evidence, and the court so held. There was no question of exemplary damages in the case. The court properly excluded the evidence offered. No other errors are claimed by the appellant.

A careful examination of the evidence in this case, and of the questions raised by the appellant, has led us to the conclusion that the verdict was justified by the evidence; that there were no errors committed on the trial that call for a reversal of the judgment, and that the judgment and order appealed from should be affirmed.

Judgment and order affirmed, with costs.

Follett, J., concurred; Kennedy, J., not sitting.

Judgment and order affirmed, with costs.