text:
    JOHN H. THOMAS, Respondent, v. E. FRANK COE, Appellant.

      Action and recovery of judgment by the special owner, bars an action, by the general owner of property.

    Where the vendee and possessor of personal property, who has received the same under a contract for its purchase, providing that the title of the vendor thereto shall continue until the same shall be paid for, brings an action against a third party for the conversion of such personal property, and recovers judgment against him for the value of the same, such judgment is a bar to an action brought by the vendor against such third person to recover the value of such property.

      Marsden v. Cornell (62 N. Y., 215), followed.
    Appeal by the defendant from a judgment, entered in the office of the clerk of Columbia county on May 25, 1888, after a trial at the Columbia Circuit, and from an order, entered in said office on May 31, 1888, denying a motion for a new trial made upon the minutes of the judge before whom the action was tried.
    The action was brought to recover the value of certain articles of personal property alleged to belong to the plaintiff, and to have been wrongfully withheld by the defendant from him, and "was tried before the court and a jury:
    In January, 1884, the plaintiff entered into a written contract with one Tough, by which plaintiff agreed to deliver to Tough certain rakes and tedders to be delivered on the cars at Springfield, Ohio, for which Tough was to give his notes whenever requested, the final and entire settlement to be made by September 1, 1884. Until payment the title to the goods was to remain in plaintiff, but Tough was to be liable to pay. In October, 1884, Tough gave plaintiff a check and notes in full for the contract-price.
    In February, 1885, prior to the commencement of this action, the defendants brought replevin against Tough and took certain goods, among which were the rakes and tedders, for the value of which this action is brought. They were taken and delivered to Ooe. Tough pleaded ownership and demanded judgment for a return of the goods or their value. On the trial a verdict was rendered for Tough for $1,729.10, the value of the goods, and judgment thereon was entered accordingly January 30, 1886. This fact was set up as a bar in the present action in the supplemental answer.

      Henry D. Hotchkiss, for the appellant.

      J. C. Newkirk, for the respondent.
   Learned, P. J.:

If the plaintiff’s position is correct that he continued to be the owner of the goods, then Tough was a bailee and had a special property therein. As such he could maintain an action against a person who had wrongfully converted them. In such action he would recover the full value. (Marsden v. Cornell, 62 N. Y., 215.) The judgment in the action of replevin was practically a judgment for conversion. Tough was decided to be owner and Coe to have wrongfully taken the property. For such wrongful taking Tough recovered against Coe the full value of the goods. The defendant now insists that such recovery is a bar to the recovery in the present action. The plaintiff, on the contrary, says that only judgment and satisfaction are such bar.

The opinion in the case above cited is unequivocal. “ Either of them (meaning the general and the special owner), could maintain an action for the conversion of the chattel; whichever of them first recovered would recover the full value of it; a recovery thereof by either barred a recovery by the other.” (Page 223.) Again: “ If the special property-man sues first and recovers, a recovery by him is a bar to an action by the general owner.” (Page 222.)

How it is quite possible that in that case there had been not only recovery, but satisfaction. But it will be seen that the court distinguishes between the payment of the judgment which gives title to the property and the recovery of the judgment which bars another recovery. This same doctrine is laid down in Neff v. Thompson (8 Barb., 213) and in Wheeler v. Lawson (103 N. Y., 40 at page 47).

So it was held in Green v. Clarke (12 N. Y., 343), that if the general owner brought an action for conversion, and there was a judgment against him on the merits, this was a bar to an action by the bailee. It seems to us that these decisions have settled the question. And, as we are convinced that the recovery by Tough in the replevin action was practically a recovery for the conversion of the goods, we must hold that that judgment was a bar to this action. This view makes it unnecessary to consider - the other question presented.

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

Landon and Ingalls, JJ., concurred.

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


source: Caselaw Access Project

author: Learned, P. J. :

license: Public Domain

text:
    ERASTUS CORNING, Respondent, v. LEURENDUS B. ASHLEY, Appellant, Impleaded with Others.

      Chattel mortgage on animals—lien for their Iceep under a contraet xoith the mortgagor — enforced as against the mortgagees by a lienor, himself one of the mortgagees.

    An owner of a horse, having given a chattel mortgage thereon to secure a debt, subsequently placed the horse with the plaintiff in this action, by whom he was to be cared for and pastured.
    In this action, brought to enforce a lien for such care of the horse, under chapter 498 of the Laws of 1872, as amended by chapter 145 of the Laws of 1880:

      Reid, that the plaintiff was entitled to a judgment establishing his lien upon the horse and directing its payment out of the proceeds of the sale of the horse. That a claim that after default in the mortgage the mortgagor was not “the owner ” of the horse any longer was not well taken, as the word “ owner," as used in the statute relating to such lien, is used in contradistinction with an entire stranger, a person who has no right or authority over the chattel.

      Bissell v. Pearce (28 N. Y., 252) distinguished; Scott v. Delahunt (65 id., 128) followed.
    That the fact that the plaintiff was one of several mortgagees to whom the chattel mortgage was given, did not prevent his acquiring a lien for the care of the horse, especially where, as in this case, it appeared that, under the terms of the mortgage, the plaintiff was not entitled to receive anything until other and prior claims had been first paid.
    Appeal by the defendant Ashley from a judgment rendered at a circuit and Special Term of the Supreme Court, held in the county of Albany in May, 1888, in favor of the plaintiff after a trial before the court without a jury.

      The action was brought to establish a lien upon certain horses described in the complaint, for their care, keep and pasturage since the service of certain notices set forth in the complaint, which lien amounted, at the date of the trial, to the sum of $2,760. The judgment established the lien and held that it was, prior to the lien of the defendant Ashley, under a chattel mortgage executed by the owner to Ashley, the plaintiff and another party.

      John S. Morgan, for the appellant.

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

On the 11th day of September, 1884, Huntington, one of defend ants, executed a mortgage on the horses in question and other horses owned by him, to Ashley, Reynolds and Freeman, other of the defendants, and to Corning, the plaintiff. This mortgage was first to secure Ashley in one year $3,120.35, and after paying Ashley, then to pay in one year whatever the mortgagor might owe the others above-named. ■ Only about $122 has been paid Ashley. On the 1st of November, 1885, Huntington sent some of the horses to Corning to be cared for, kept and pastured, and on the 17th of April, 1886, another. Corning had kept, cared for and pastured them down to the time of trial, and they were then in his possession. ' On the 24th of May, 1886, Corning served on all the defendants (except Freeman) a notice that be claimed a lien for the keeping of the horses, in due form; and on the 15th day of March, 1887, another notice of a similar character, on all the defendants. The horses had been in Huntington’s possession until he sent them to Corning.

This action was brought to enforce Coming’s lien, under chapter 498, Laws of 1872, amended by chapter 145, Laws of 1880. The court, found the value of the keeping since the service of the notices and gave judgment therefor, and that the horses be sold to satisfy the hen. The defendant Ashley appeals, insisting that, as against him, the mortgagee, the plaintiff has no lien. The defendant Ashley insists, first, that after default in the mortgage, the defendant Huntington was not “the owner” of the horses. The word “ owner,” in this statute, is used in contrast with an entire stranger, a person who has no right or authority over the horses, a thief, for instance, or a mere hirer of the animals. The mortgagor in possession, even after, default, is not such a person. It is true that the decisions as to his rights are somewhat inconsistent with themselves. As where it is said that on default, the mortgagee’s title becomes absolute; yet the mortgagor has an equity of redemption and is not divested of all interest, (Charter v. Stevens, 3 Den., 33.)

But we need not in this case discuss the exact rights of such mortgagor. If the mortgagee does not take possession, he evidently leaves the mortgagor to take care of and use the property in a rightful manner. So that if the mortgagee insists that on default he has become the owner, he evidently continues the mortgagor (remaining in possession) as still having authority to do all things needed for the property. It is not meant by this that the mortgagor becomes an agent of the mortgagee to bind him. Only that under this statute he is the owner, or a person acting for the owner, in distinction from a mere stranger. (Scott v. Delahunt, cited below.)

The next question, then, is as to the effect of the lien given by statute as against the mortgage of the defendant Ashley. To create the lien the statute requires previous notice of the amount of the charges and the intention to detain the animals until the charges are paid, to be given to the owner. Such notice was served on Ashley as well as on the others, and the amount recovered is for charges since such service. In Bissell v. Pearce (28 N. Y., 252) it was held that a mortgagor could not, by his own agreement, create a lien for the keeping of horses superior to the rights of the mortgage. But this present case rests on a different ground. The statute creates the lien. That statute was in force when the mortgagee took his mortgage, he knew, or was chargeable with knowledge that the statute then gave to the agistor this lien, which would attach to any horses lawfully placed with him. It was intended to protect every agistor by giving him a lien. And Ashley could not by his mortgage deprive an agistor of the benefit of the statute. In a-certain sense, it maybe said that the provisions of the statute entered into the contract of mortgage. In Scott v. Delahunt (65 N. Y., 128) it was held that the owner of a mortgaged canal boat, after the mortgage had became payable, might have necessary repairs made, and that such repairs would be a lien prior to the mortgage. The law gave the lien as against the owner. The mortgagee had allowed the mortgagor to continue in possession and apparent ownership, therefore the mortgagor might have repairs made. And the lien given by the common law;to the workman attached as against the mortgagee. The court distinguished the case from that of Bissell v. Pearee in this respect, that in the one the lien was created merely by the agreement of the mortgagor; in the other by the law. That distinction brings the present case exactly within the principle of Scott v. Delahunt. The lien is created by law, a law existing at the time of executing the mortgage, and if the mortgagee desires to prevent the mortgagor from doing anything which might give rise to the lien, he should take possession of the property. The defendant urges that a man cannot convey what he does not own. This remark would be applicable if the mortgagor had simply by his own agreement pledged the property, as in Bissell v. Pearce. But it does not apply when the law gives the lien, a law to which the rights of the mortgagee are subject.

In Scott v. Delahunt it is stated that, during the time of making the repairs, the mortgagee had knowledge thereof and did not object. The same circumstance exist here, Ashley knew that the plaintiff had the horses for keeping and knew of plaintiff’s claim to have a lien, and did not object.

The defendant Ashley further insists that he and the plaintiff and the others became tenants in common after the mortgage was payable, and hence plaintiff can have no lien. It is enough to say that Ashley, under the terms of the mortgage, had the right to be paid first and before the others; until he was paid the plaintiff and the others had practically only a second mortgage. This did not dej ive the plaintiff of his rights as an agistor under the statute.

The judgment should be affirmed, with costs.

Lakdon and Ingalls, JJ., concurred.

Judgment affirmed, with costs.


author: Learned, P. J.:

text:
    FRANCIS A. FALES, Respondent, v. THE GLOBE KNITTING COMPANY, Appellant, Impleaded with THOMAS B. LAWSON and Others.

      Form of judgment to be entered on the overruling of a demurrer interposed by one of several defendants.

    Where, in an action for the foreclosure of a mortgage, a demurrer, interposed by one of several defendants, is overruled, with the privilege to such defendant to answer within a certain time on payment of costs to the plaintiff, the judgment to be entered thereon, after the expiration of such time, is interlocutory and should not provide for the payment of costs where there rerpain other issues to be disposed of which are raised by the answers of other defendants.
    Appeal by the defendant, the Globe Knitting Mill Company, from a judgment, entered upon an order made at the Montgomery Special Term, overruling a demurrer interposed by said defendant, with costs, and directing that judgment be entered thereon for the plaintiff, with liberty to such defendant to answer the complaint within five days after the service of a copy of the decision thereon, upon payment to the plaintiff’s attorney of thirty-five dollars costs of the demurrer.
    The action was brought to recover the amount due upon a bond and mortgage against the defendant, the Globe Knitting Company of Amsterdam, who demurred to the complaint, and other parties defendant who did not unite in such demurrer but answered the complaint.

      E. P. White, for the appellant.

      E. F. Bullard, for the respondent.
   Learned, P. J.:

This is an action of foreclosure in which the plaintiff asks also the special relief of an injunction to prevent defendants from selling certain machinery, etc. The defendant, The Globe Knitting Company, demurred for misjoinder of causes of action. On argument, September twenty-fifth, the demurrer was overruled, with privilege to answer in five days, on payment of thirty-five dollars costs to plaintiff. This defendant did not avail himself of this privilege ; and on October eighth the plaintiff' entered a judgment against this defendant, overruling this demurrer and for seventy-three dollars and thirty-four cents costs against this defendant. On the twenty-sixth of November this defendant move'd to correct this judgment by inserting the word “ interlocutory,” and striking out the provision for costs and the docket of said judgment. This was made on an affidavit showing that plaintiff had commenced an action for sequestration upon that judgment and for the appointment of a receiver. This motion was denied. The defendant on December seventeenth appealed from this judgment of October eighth. The plaintiff now moves to dismiss that appeal on the ground that it was not taken in time.

The plaintiff’s practice is not correct. The judgment of September twenty-fifth should have provided what was to be entered thereon. (Sec. 1021.) He was not authorized to enter a judgment for costs. The action was not severed (§ 1205), and the costs on the argument of the demurrer were part of the final costs in the action. Section 1021 only allows final judgment to be entered (where leave to plead over is given) in case no other issue remains to be disposed of. He could not enter a final judgment until the issues of fact, raised by other defendants, had been disposed of, not until the usual reference had been had against parties not appearing. The judgment of October .eighth was simply interlocutory, because, according to the definition of the Code (§ 1200), it was not a final determination. Being interlocutory, if the defendant did not appeal from it in the proper time, he can only review it (if at all) by appeal from the final judgment; and that final judgment will be the judgment decreeing a foreclosure and sale, which can only be had when all the issues shall have been disposed of.

This appeal, therefore, must be dismissed. And we have stated what the practice should have been and wherein the plaintiff is ■incorrect. As has been said above, the judgment of September twenty-fifth ought not to have provided for any final judgment, because other issues remained to be disposed of and the action could not properly be severed. There is a motion to stay proceedings on an appeal from another order in this case on the ground of non-payment of costs. The motion is denied.

Landon and Ingalls, JJ., concurred.

Appeal from judgment dismissed, without costs, and motion to stay proceedings on appeal from order denied.


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

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JACOB J. CROUNSE, Appellant.

      Public nuisance— caused by an obstruction on pi’ivate property created by direction of the commissioner of hiylma/ys — emdenae, rule as to striking it out — liability of a husband while acting as agent of his wife.

    The construction of an embankment upon private land with the result of causing surface water thereafter, and because thereof, to flow upon a public highway to its injury and to the prejudice of the rights of the public using the same, where such work has been done by direction of the commissioner of highways of the town, does not justify any charge or inference of malice against the party doing it.
    Where a party is indicted for such obstruction of the highway, he is entitled to give evidence showing that the act done by him was done by direction of the commissioner of highways.

      Semble, that although such commissioner of highways may fail, in such a case, in judgment, the act done pursuant to his direction cannot be punished criminally.

      Quin v. Lloyd (41 N. Y., 349) followed.
    A party who allows evidence to be received without objection, cannot thereafter, when he finds it to be adverse to him, move to strike it out.
    A husband, while acting as the agent of his wife, cannot be made liable and punished for continuing a nuisance upon land owned by the wife.
    Appeal from a judgment, rendered at the County Sessions of Albany county on the 30th day of April, 1887, convicting the defendant on an indictment charging him with the crime of “ public nuisance,” in that he did unlawfully and willfully interfere with and obstruct, and unlawfully render dangerous for passage, a certain public highway in the township of Knox, in the county of Albany; and did erect and construct on certain lands, in the indictment referred to, a certain dam, embankment or structure, in and under the road-fence adjoining thereto; and did, willfully and maliciously and unlawfully, cause and procure the same to be so bpilt and constructed; and did unlawfully continue to maintain the said dam, erection and structure, by reason whereof a certain stream of water was turned back upon and overflowed the said public highway, and washed away the earth therefrom and rendered the same dangerous for passage.

      Jacob Clute, for the appellant.

      Hugh Reilly, district attorney, for the respondent.
   Ingalls, J.:

The defendant was, by indictment, charged with having, on the 5th day of June, 1885, wickedly, unlawfully and willfully interfered with and obstructed a public highway in the town of Knox, in the county of Albany, and thereby caused the water to flow upon such highway to its injury and to the prejudice of the rights of the public who were entitled to use the same as a public highway. The prosecution gave evidence at the trial to the effect that, in 1885, an embankment existed under the fence adjacent to such highway and upon land occupied by the defendant, but which the evidence shows was owned by Mrs. Jane Crounse, who resided with her husband upon the same premises. Such embankment was removed by the defendant, who subsequently filled up the ground upon the premises occupied by him, thereby creating what was claimed by the prosecution to constitute an obstruction to the flow of the water in its natural course. Such filling was accomplished by the deposit of stone, gravel and other materials a short distance from where the obstruction first mentioned was located. Considerable evidence was produced at the trial in regard to such structures, and the extent thereof, and the effect produced by them in regard to the flow of the water upon the highway. It seems from the evidence, as we understand it, that the water which accumulated upon the land occupied by the defendant was surface water, which at certain seasons of the year disappeared. The view which we take of this case does not render it necessary to examine the evidence or to discuss the same to any considerable extent, for the reason that we have become convinced that legal errors were committed at the trial which prejudiced the case of the defendant to an extent which calls for a reyersal of the judgment. One material error. consisted of the striking out, upon the motion of the district attorney, of the evidence of Andrew J. Armstrong, the commissioner of highways, who was examined as a witness on the part of the defendant, for the purpose of showing that whatever he did in removing the embankment and filling upon the land which he occupied, was done by the direction of such commissioner of highways' of the town of Knox. The motion and the decision thereon appear in the following evidence of the witness Armstrong:

Andrew J. Armstrong, sworn for the defendant. Examined by Mr. Clute :

Q. Where do you live now? A. Town of Wright, Schoharie county. Q. How long have you lived there ? A. I moved there about a week before the first of April of this year. Q. You moved there, then, in March, 1887 ? A. Yes, sir. Q. Where did you move from ? A. Knox. Q. How long had you lived there ? A. I was born there, and I had been out of the town, I guess, three years, and I was forty years old in March; about thirty-seven years. Q. Were you ever commissioner of highways of that town? A. I was in 1885. Q. Were you acquainted with this road that passes between the Methodist Church and the school-house, starting from the Schoharie road over to the street ? A. I have always traveled it more or less; not a great deal of late years. Q. While you were commissioner of highways did you make an examination of that road? A. I did. Q. And of those sluices? A. Yes, sir. Q. And where the water was running ? A. I did. Q. Did you see Mr. Crounse? A. I did. Q. And have a talk with him about it? A. Yes, sir. Q. As commissioner, did you take counsel as to what you should do to the road ? A. Yes, sir. Q. What instructions, if any, did you give Mr. Crounse, as commissioner ? A. I said to Mr. Crounse that we would each pick a man that would take good counsel; he could and I would; and as they decided so it should go; and he told me to pick mine first, and I did so; then he said “we won’t pick but one, we will leave it to him,” and we did so; I stated the case as near as I could and the counsel decided ? Q. After getting the decision of the counsel, then what did you say to Mr. Crounse ? A. I told Mr. Crounse he could open the ditch on the side of the road and let the water run. Q. Did you say anything to him about filling up on the side of his land or fence ? A. Yes, sir; I think so. Q. Where the water had been running ? A. Yes, sir. Q. What did you state to him ? A. I told him he could fill that up; I didn’t think there was any place for water to run there. Q. You have examined the land adjoining this road at that place, have you ? A. Yes, sir. Q. The water that comes from the west and crosses over and comes into this place, -where does it go to ? A. There had been some time a ditch cut through when I was there; it run into a piece of low land, as I should call it, in the second field, and there it remained until they dug a ditch and let it out. [The district attorney moved to strike out the witness’s evidence as to what he directed defendant to do, on the ground as commissioner of highways he was not authorized to permit the obstruction of a water course or the flooding of a highway ; that even if he did give such instructions to Mr. Crounse, Mr. Crounse was not justified in obeying them. Motion granted. Defendant excepts.] Q. What, if anything, did you say to Mr. Crounse about opening the ditches on the side of the road or taking away this embankment at both ends of that sluice ? A. I told him that he could. Q. Have you been over here in Crounse’s field to make an examination of where this high ground, -where the two portions come together? A. I haven’t been there since the fall of 1885.

We are satisfied that the evidence stricken out was competent and material to the defendant’s case. It at least tended to repel any charge or inference of malice, which was an element of the offense charged against the defendant. The defendant was called upon to vindicate his conduct and was entitled to explain the motives by which he was actuated in what he did. It is difficult to conceive more satisfactory evidence upon that subject than that testified to by Armstrong and stricken out by the court. Such evidence was to the effect that the defendant sought and acted under the advice and direction of the officer of the town, who was' charged with the care of the highways of the town, and was, therefore, competent to direct in regard to them. (McFadden v. Kingsbury, 11 Wend. 667.) And if such officer failed in judgment in regard to the direction which he gave to Crounse, certainly the latter should not be punished criminally for following it. We do not undertake to decide precisely the force and effect which the jury should give to that evidence, but merely that it was competent and material for them to consider in connection with the other facts of the case. Such evidence was received without objection by the district attorney, and we think it was error on the part of the court to strike it out after it had been so received. A party is not at liberty at a trial to remain quiet when evidence is being given and allow the same to be received without objection, and after speculating in regard to its effect, cause it to be striken out, as the motion under such circumstances comes too late. (Quin v. Lloyd, 41 N. Y., 349.) Judge Wood-worth, at page 355, says: “ A party against whom a witness is called and examined, cannot lie by and speculate on the chances; first learn what the witness testifies and then, when he finds the testimony unsatisfactory, object either to the competency of the witness or to the form or substance of the testimony. * * * The counsel may have been careless in permitting testimony to be given without objection, which perhaps would have been excluded if objected to; but this will not authorize the referee to strike it out after it has been received.” It does not seem to be a satisfactory answer that the district attorney attempted in this manner to raise a legal question in regard to the competency of the evidence, as that he could have accomplished by a direct request to the court to charge the jury in regard to the legal effect of such evidence without violating a plain rule of evidence. It will be perceived, by reference to page 64 of the case, that the prosecution resorted to the same species of evidence by the examination of Charles Armstrong as follows:

Charles Armstrong sworn on behalf of the people. Examined by District Attorney Beilly :

“Q. Are you path-master ? A. I was in 1886. Q. You know this stream ? A. I do. Q. And have known it for a number of years? A. Twenty years. Q. What was its course — through Orounse’s land as described ? A. Yes, sir. [Objected to.] Q. What was its course ? A. Came down and across the road and went on to the lands occupied by Mr. Crounse. Q. When was that ? A. 1885. Q. How ? A. Dam in the fence where it had crossed through. Q. What, if anything, did you do in reference to that dam as path-master ? A. I wasn’t path-master.
District Attorney : — I propose to show by this witness that by order of the commissioner he removed this dam.
Q. What lid you do in reference to that obstruction ? A. Made a complaint to the commissioner of highways. Q. Then what was done ? A. He ordered me to remove it. Q. Did you remove it ? A. I did by help of district. Q. What do you mean by that? A. These that are assessed on the road.”

It would seem that the defendant was entitled to the benefit of a principle thus established upon the same trial at the instance of the prosecution.

In this case it appears that the farm, upon which the obstructions are claimed to have been placed and continued by the defendant, was owned by Mrs. Crounse, the wife of the defendant, and that she resided upon the premises at the time. Under such circumstances it has been decided by this court that the husband, while acting as the agent of the wife, cannot be made liable and punished for continuing a nuisance upon such lands. (People v. Livingston, 27 Hun, 105.) The indictment herein charges the defendant with continuing such alleged nuisance. And, therefore, this case is brought clearly within the doctrine of the case cited.

For the reasons assigned we conclude that the conviction should be reversed and a new trial granted.

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

Landon, J.:

Concurring with my Brother Ingalls, I add that the offense of committing a nuisance upon a public highway consists, among other things) in unlawfully doing an act which unlawfully interferes with, obstructs or tends to obstruct, or renders dangerous for passage'the highway. (Penal Code, § 385.)

The evidence which the court struck out, on motion of the prosecution, tended to show that the act of the defendant in 1885, in diverting the stream from its natural course through the lot of defendant’s wife to a course along the highway, was done by defendant under the authority of the commissioners of highways. Assuming the truth of what was thus attempted to be shown to be true, the act of defendant was, in effect, the act of the commissioner. Commissioners of highways have the care and superintendence of the highways and bridges in their respective towns, and it is their duty to give directions respecting the repairing of the roads and bridges. (1 R. S., 501, § 1.) It does not appear that there was more than one commissioner in this town. I think the commissioner had the power to direct respecting the proper treatment of this watercourse, and that if in exercising his authority he made a mistake, it was, in the absence of evidence to the contrary, simply a mistake in judgment, which in no degree impaired the power and authority which he exercised. The defendant, if acting under such authority, did not, therefore, act unlawfully, and hence his action would not come within the terms of the Penal Code above referred to. If defendant after the above authority was revoked repeated the act in 1886, he was not indicted for it.

Learned, P. J., concurred.

Judgment and conviction reversed and new trial granted.


text:
    THOMAS J. O’BRIEN, as Administrator, etc., of PETER O’BRIEN, Deceased, Respondent, v. HOME BENEFIT SOCIETY OF NEW YORK, Appellant.

      Insurance contract by mutual benefit society—in an action thereon a money judgment is proper—the beneficia/ry is not obliged to proceed by man damus to compel an assessment — evidence as to what the assessment would amount to — mistake of agent in filling in the application. ■

    A certificate of insurance was issued upon the life of one O’Brien by a mutual benefit society, which agreed, in case of the death of the assured, that his heirs or assigns should be entitled to all of the amount realized from one assessment not exceeding $2,000.
    In an action, brought upon such certificate of insurance, to which a defense was interposed that the assured had falsely answered a question propounded to him on his application for membership, the jury found adversely to the defendant.

      Held, that the assured was entitled to a money judgment against the mutual benefit society.
    That he was not obliged to take proceedings to compel the assessment to be made, as, under the certificate of insurance, it was the duty of the defendant to do so.

      Hankinson v. Page (12 N. Y. Civ. Pro. R, 279) followed.
    That the amount of the recovery by the plaintiff might properly be determined upon evidence offered by him, in the form of reports made by the mutual benefit society to the State Insurance Department, and from the data contained in them tending to show that an assessment, levied according to the terms of the certificate, should amount to much more than $2,000.
    Where the agent of a mutual benefit society by mistake inserts in the application for the insurance an answer which the applicant does not in fact make, the mutual benefit society is responsible for the error of the agent, and the erroneous answer does not constitute a defense to an action brought upon the contract of insurance after the death of the assured.

      Appeal by the defendant from a judgment entered upon the verdict of a jury, rendered at the Albany Circuit, in the office of the clerk of Albany county on the 6th day of' February, 1888, against the defendant for the sum of $2,575.24; and also from an order, entered in said clerk’s office on the 10th day of February, 1888, denying the defendant’s motion for a new trial made upon the minutes of the judge presiding at the trial.
    The action was brought to recover for a breach of a contract of life insurance, and to recover the sum of $2,000 as damages after the death of the assured.

      Charles Blandy, for the appellant.

      Edwin Countryman, for the respondent.
   Ingalls, J.:

Peter O’Brien became a member of the Home Benefit Society of New York, the defendant herein, on the 25th day of Aprib 1884, and thereafter until his death, paid to the society the dues required of him. The society delivered to him the following certificate of membership, which he held at his decease:

No. 3261. . Certificate of Membership. $2,000.
Division B. Age, 59.
Assessments, $5.50. Annual Dues, $5.00.
Annual dues are payable semi-cmnually, first of Ja/nua/ry a/nd first of July vn each yean'.
HOME BENEFIT LIFE AND ACCIDENT SOCIETY OF NEW YORK.
Home Office, 98 Broadway, Nv Y.

This is to certify that Peter O’Brien, of 15 Fayette street, city Albany, State of New York, has paid the sum of twelve dollars, being the amount required on application for membership, and is, therefore, accepted as a member of the Home Benefit Life and Accident Society of New York, in Division B, subject to the conditions and requirements of the amended by-laws, rules and regulations of the society and stipulations contained in the application for membership, and also to the conditions printed hereon.

The membership entitles Peter O’Brien, after the presentation of satisfactory proof of the affliction with disabling injury by accident of said member, subject to and in accordance with the charter, amended by-laws, rules and regulations of the society, and of the conditions printed hereon, to nine dollars weekly indemnity not exceeding three months; or, if said member shall have become permanently and totally disabled by accident for life, i. e., so as to preclude the possibility of ever following any vocation; or, in the event of death, and upon satisfactory proofs thereof, the membership entitles Peter O’Brien, heirs or assigns, within ninety days after satisfactory proofs have been furnished to the officers of the society at the home office, to all of the amount realized from one assessment, not exceeding $2,000, payable at the home office of the society'in New York. Provided said member continues to observe a ;d comply with the conditions, requirements and stipulations above referred to, and to duly pay the semi-annual dues and assessments of said society during membership, otherwise the membership, with all moneys to the society, and all claims against the same in his behalf, shall be forfeited, and this certificate shall be null and void, without any notice to said member, or any action being taken by this society.

Given under the seal of the society, at New York, this [l. s.] 25th of April, 1884.
JOHN T. W. KING,
Geobge W. Godwabd, President.
Secretary.

Peter O’Brien died at Albany on the 10th day of J anuary, 1886, and on the following day the defendant was notified of his death. The proofs required to establish the claim for the insurance were furnished to and retained by the defendant. The death of Peter O’Brien was caused by rheumatism, with which he was afflicted at the time he became a member of the society. The defendant refused to pay any part of the amount specified in the certificate, and neglected to make an assessment to raise the money as therein required. Such refusal and neglect were based upon the alleged ground that Peter O’Brien falsely stated, in answer to a question propounded to him, and included in his application for membership, that he had never had rheumatism. The application was prepared by John S. Slingerland, who was, at the time, an agent of the defendant, and in that capacity conducted the proceeding and inserted in the application the answers of the applicant to the questions asked him. Upon the trial it became a material question of fact whether Peter O’Brien did answer as recorded' by such agent, in regard to his ever having had rheumatism, and upon such question there was a direct conflict in the evidence. The court submitted such question of fact to the jury for their determination, by a charge eminently fair and impartial, and the jury found adversely to the defendant. The evidence upon that question is such that the finding of the jury should not be disturbed by this court. If the agent of defendant, by mistake, inserted in the application an erroneous answer, which the applicant did not, in fact, make, the defendant must be held responsible for the error of the agent, and must abide the consequence thereof. (Flynn and Others v. The Eq. Life Ins. Co., 78 N. Y., 568 ; Higgins v. The Phœnix M. L. Ins. Co., 74 id., 7; Grattan v. The Metropolitan Life Ins. Co., 80 id., 281; S. C., 92 id., 275.) In view of the finding of the jury, and the facts and circumstances of the case, we assume that such answer of the applicant was erroneously inserted by the agent, and, therefore, furnishes no ground for avoiding the claim in question. Regarding the nature of the application and of the certificate granted thereon, and the reciprocal duties, obligations and relations thus created between the parties to the transaction, we are convinced that the same should be regarded in the nature of a contract between the parties thereto; and, upon performance by the applicant of his undertaking, the defendant became obligated to cause the assessment to be made and collected, and to pay to the party entitled thereto the money thus raised, not exceeding $2,000.

The duty of the defendant was plain, and required no direction from the court to enable it to put in operation the machinery by which the money was to be raised by such assessment to pay the claim in question. The defendant, instead of proceeding in that direction, absolutely refused to recognize the claim or any part thereof, and chose to resist the same upon a ground which it was not successful in establishing at the trial, and we perceive no substantial reason why the defendant should not accept the result of the experiment. The plaintiff having notified the defendant of the death of Peter O’Brien, and having furnished the proofs required in support of the hi a im under the certificate, and in accordance with the rules and regulations of the society, seems to have performed the requirement of the obligation on his part; and the defendant was called upon to cause the assessment to be levied in order to discharge its obligation. We discover no substantial reason for casting upon the plaintiff a burdensome and expensive proceeding in the court to compel an assessment, when it was not only the duty of the defendant to cause it to be made, but it possessed every facility for accomplishing the same. We are convinced that this action is proper in form and can be maintained. (Freeman v. The National Ben. Society, 42 Hun, 252; Fulmer v. The Union Mutual Association, 12 N. Y. S. Rep., 347; Hankinson v. Page, ,12 N. Y. Civil Pro. Rep., 279.) In the case last cited the court, at page 288, say: “ Upon refusal to make the assessment it would be liable at law for such sum as might have been collected if it had fulfilled its undertaking. It would not be permitted to allege that nothing was due the plaintiff because of its own default in doing what it had agreed to do.” The plaintiff upon this trial seems to have sufficiently supplied by evidence, which was competent, the failure of proof, for the lack of which the new Dial was granted by this court. (O’Brien v. Home Benefit Society, 46 Hun, 426.) The evidence thus furnished certainly tends strongly to show that an assessment -would be likely to produce the amount required to satisfy the plaintiff’s claim specified in the certificate.

We have examined the exceptions taken by defendant’s counsel during the trial, which are not involved in the foregoing discussion of the case, and, without stopping to discuss them in detail, we remark that we have discovered no error in the rulings of the court which can have materially prejudiced the defendant’s case, and which requires a reversal of the judgment.

The judgment must be affirmed and a new trial denied, with costs.

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

Landon, J.:

The contract is to be fairly construed; its terms, so far as they are plain, must govern; special phrases of equivocal meaning are not to be resolved so as to defeat the manifest purpose of the entire contract, One party intended to purchase insurance the other to sell it, and the instrument must be construed so as to support that intention. The defendant, upon performance as specified on the part of the assured, promised to pay to his heirs in the event of his death, not a fixed sum, but all of the amount realized from one assessment, not exceeding $2,000.” The defendant also agreed that upofi the death of the assured it would assess the members of the society according to a printed schedule contained in its by-laws. It did not agree to assess some and not all, not those in one division and except those in another division, but all of them; and it agreed to pay to the heirs of the assured “ the pro rata of the amount so derived,” not exceeding $2,000. This, the contract says, means “ all of the amount realized from one assessment, not exceeding $2,000.” The defendant refused to levy any assessment and refused to pay the plaintiff. It put its refusal upon the ground of fraud in procuring the certificate. The issue of fraud has been determined upon this trial against the defendant. Accepting, the verdict in that respect, the case stands that the defendant unjustifiably refused to levy the assessment and pay the proceeds to the plaintiff. It ought to pay him, and the only question is, how much ? When the case was here upon a former appeal there was no evidence tending to show what amount could be realized from one assessment, and there was no evidence in the case by which to measure the amount of the plaintiff’s recovery. The plaintiff had recovered the largest possible sum without evidence tending to show that any sum could be realized from an assessment. It seemed to me that, in an action at law to recover a sum of money on contract, the plaintiff must prove as a part of his case facts enough to enable the jury to compute the amount due him. No method of ascertaining the amount in an action at law was then presented or suggested, and, not knowing that any was available to the plaintiff, I suggested that possibly the plaintiff would be obliged to have recourse to equity in order that the proper assessment should be levied, collected and its proceeds paid to the plaintiff.

But upon the retrial the plaintiff hg,s availed himself of the reports made by the defendant to the State Insurance Department, and from the data contained in them has submitted evidence tending to show that an assessment levied according to the terms of the contract would amount to much more than $2,000. By the contract the defendant does not agree to levy the assessment unless the condition of its funds makes an assessment necessary; in other words, whether it shall levy an assessment in order to pay the plaintiff is a matter for it to decide. It is true that the amount of the assessment may be more than the amount derived ” or “ realized ” from it, but in the absence of an actual test it is the best evidence obtainable ; and since better evidence, namely, the actual levy and collection, is withheld by the defendant, it should not be heard to complain of the absence of evidence caused by itself. If the defendant had performed its contract it would have paid the plaintiff $2,000. Not performing it, it owes him $2,000, and hence the recovery is right. The defendant complains that its testimony, tending to show that an assessment would not have produced $2,000, was improperly excluded. All the offers of testimony were based upon" propositions at variance with the contract with the assured respecting the assessment. It is no answer to the plaintiff that the defendant’s agreements with its other members would not permit it to make the assessment which the contract calls for. I concur for affirmance.

Learned, P. J., concurred.

Judgment affirmed, with costs.


author: Learned, P. J.

text:
    GAMALIEL HUGGANS, Respondent, v. CHRISTOPHER RILEY, Commissioner of Highways of the Town of Lexington, Greene County, N. Y., Appellant.

      Bridges over streams crossing public highways — right of the highway commissioner to construct them—powers of boards of supervisors—chap. 855 of 1869 and chap. 482 of ls75.
    When a highway is lawfully laid out it becomes the duty of the commissioner of highways to open and work it; in doing which, where it is necessary, he is authorized to construct bridges over any streams which are crossed by such highway.

      Mather v. Crawford (36 Barb., 564) followed.
    Although the contract for the construction of a bridge is made by a highway commissioner before the highway upon which the bridge is to be used has been laid out, yet after such highway has been laid out the commissioner may cause the bridge to be constructed in accordance with such contract, notwithstanding the fact that his action in entering into such contract was, at the time it was made, illegal.
    The power conferred upon boards of supervisors by chapter 855 of 1869, and chapter 483 of 1875, to provide for the location, erection, repair and purchase of bridges, does not deprive a commissioner of highways of the right to repair a bridge (given to him by 1 Rev. St, 503, § 1, sub. 4) over a stream which intersects a highway, nor does it take away his power to construct a bridge over such a stream, provided the commissioner has the necessary funds to pay therefor.
    Appeal by the defendant from a judgment, entered on the 23d day of April, 1888, at the Greene County Circuit, after a trial before the court without a jury.
    The action was brought to restrain the defendant from erecting a bridge at a place called Deep Hole, in the town of Lexington.
    The judgment was to the effect that the plaintiff was entitled to maintain this action ; that said bridge had n,ever been located at the Deep Hole, so-called, by the board of supervisors of Greene county, or by any other competent authority; that said defendant was wasting and injuring the estate, funds and other property of the town of Lexington, Greene county, H. Y.; that the said defendant, his successors, agents, servants and contractors be and they were and each of them'was thereby restrained and enjoined from erecting the said bridge at the said Deep Hole, and from wasting and expending the property and funds of said town of Lexington in the erection df said bridge, until the said board of supervisors or the legislature of this State shall locate the site for said bridge or authorize the location thereof.

      John A. Griswold, for the appellant.

      Emery A. Chase, for the respondent.
   Learned, P. J.

The action is brought by a citizen and taxpayer of the town of Lexington, pursuant to section 1925 of the Code of Civil Procedure, to restrain the defendant, the commissioner of highways of that town, from erecting a bridge. The ground of the action is that, as alleged, the bridge had not been legally located at the point where the commissioner was in the act of constructing it. It is plainly not within the power of this court to consider whether the place selected by the commissioner is or is not the best possible. The position taken by the plaintiff and by the learned justice of the Special Term is that no place had been legally selected; that the power to select the place was in the legislature and in the board of supervisors; that neither of these bodies had acted, and that the action of the commissioner in selecting the place was not authorized by law, It appears by the findings and evidence that on the 25th of April, 1887, the defendant, as commissioner of highways, made an order laying out a highway which crossed the Schoharie creek at Deep Hole, the place where this bridge was, at the time of the commencement of this action, in process of erection. We do not see that any objection is made to the regularity of the proceedings to lay out this highway. It seems to form a connecting link between two highways, one lying on each side of the creek. And the authority of the commissioner of highways, upon proper application, to lay out a new highway cannot be questioned. The proceedings in this instance are shown in the case, and no irregularity is pointed out.

When a highway is lawfully laid out it becomes the duty of the commissioner to open and work it. In doing this it is plainly necessary to construct bridges over any streams crossed thereby. Evidently he would be obliged to construct culverts for little runs of water And when, instead of a little run of water, a stream of some size crosses the highway thus laid out, it must be within his power and duty (when provided with the necessary means), to construct a proper bridge as a part of the highway. This was the view taken in Mather v. Crawford (36 Barb., 564), where it is said that the commissioners of highways are required to keep in repair bridges erected over streams intersecting highways, and that by implication they are authorized to build new bridges in such cases.

Now it is true that, in the present case, the contract to build the bridge was made before the highway was laid out, of which the bridge will now form a part. But, although the commissioner may have exceeded his power in making the contract, yet it does not follow that he may not now cause the bridge to be constructed, and that he may not, for that purpose, carry out that contract. A similar question arose in People v. Meach (14 Abb. [N. S.], 429), as will be seen at page 433. The learned justice, speaking of the objection that no road was connected with the bridge, says: " Such road or highway is now laid out and being worked. This, I think, removes the objection, or at least makes the location of the bridge proper from that time,” etc. At the time the present action was commenced, the highway had been laid out by the commissioner; so that the objection that the bridge was not a part of a highway had been removed.

But it is urged by the plaintiff that chapter 855 of the Laws of 1869, and chapter 482 of the Laws of 1875, give power to the board of supervisors to provide for the location of bridges. This first act gives such boards power to provide for the location, erection, repair and purchase of any bridge except over navigable streams. Does this power deprive a commissioner of highways of the right to repair a bridge over a stream intersecting a highway ? 1 Revised Statutes (in. p. 502, § 1, sub. 4) expressly gives the power of repair to such commissioners. It cannot be that the statute above cited takes this away, so that a commissioner cannot make any repairs; but the board of supervisors must do such work. It seems evident, therefore, from this use of the word repair, that the statute giving this power to the board of supervisors did not take from the commissioner of highways the power he had possessed. Whatever, then, the object of this statute, we cannot think that the commissioner of highways may not now construct a bridge over a stream intersecting a highway, if he lias the necessary funds. The lawful laying out of the highway is a practical locating of any bridge which is needed to cross a stream intersecting such highway. No other locating seems needed, or even jiossible. Where the highway crosses the stream, there the bridge must lie. It seems to us that this view practically disposes of this case. The authority to raise the necessary funds has been given. The board of supervisors have not (if they had the power to do so) determined the location of the bridge. The commissioner is proceeding to build this bridge as a part of a highway duly laid out, and we think he should be allowed to go on with liis work.

There is evidently a disagreement of views among the inhabitants of the town as to the place where the bridge should be built; and it seems quite proper that the matter should be settled by the proper officer of the town. It is certainly not a subject on which the legislature can act wisely, and probably the board of supervisors cannot judge of the matter any better than the local authorities.

We think the judgment should be reversed, and a new trial granted, costs to abide the event.

Landón and Ingalls, XT., concurred.

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


author: Landon, J.:

text:
    DANIEL KEELER, Respondent, v. MARY KEELER, Appellant.

      Lien'of cm attorney upon Ms client’s cause of action, conferred by section 66 of the Code of Civil Procedure ■—-no notice thereof need be given to the adverse party.

    Section 66 of tiie Code of Civil Procedure, declaring that the compensation of an attorney or counselor for his services is governed by agreement, expressed or implied, which is not restrained by law, and from the commencement of an action or the service of an answer containing a counter-claim, the attorney who appears for a party has a lien upon his client’s cause of action or counter-claim which attaches to a verdict, report, decision or judgment in his client’s favor, and cannot be affected by any settlement between the parties before or after judgment, makes the lien complete, and does not require any notice of the lien to be given to the adverse party.
    A payment in settlement of the cause of action made to the party himself, without notice to the attorney, and without affording him an opportunity of protecting his lien, unless he has waived his right to a lien, cannot prejudice him.
    Where the parties to an action settle it before trial an attorney may continue the action and recover so much upon his client’s cause of action, as it existed before the settlement, as equals the amount of his lien.

      Coster v. Greenpoint Ferry Company (5 Civ. Pro. R, 146; S. C., 98 N. Y., 660); Wilber v. Baker (24 Hun, 24); Forstman v. Schulting (35 id., 504); Pickard v. Yencer (10 Weekly Dig,. 371); Albert Palmer Company v. Van Orden (64 How., 79) followed.
    Appeal from a judgment of the Albany County Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on November 30, 188X
    The plaintiff, by Doyle & Fitts, his attorneys, commenced this action in favor of the plaintiff to recover for services rendered the defendant. The attorneys made an agreement with the plaintiff that, for their services, they should have one-half of the recovery and all the taxable costs. After they served the complaint, and, before answer, the parties, without notice to plaintiff’s attorneys, settled the cause of action for $300, which sum the defendant paid the plaintiff. The defendant had no notice of the agreement between the plaintiff and his attorneys. The defendant afterwards answered and alleged the settlement and payment in defense. The plaintiff did not pay his^attorneys. The case came on for trial, and, on proof of the above facts, the defendant asked the court to rule that the recovery be limited to the taxable costs; that the lien of the attorneys could not be enforced without first obtaining leave of the court; that the defendant be permitted to go to the jury upon the question whether the settlement was made in good faith.
    These several requests were refused, and the court directed a verdict in favor of the plaintiffs for $150.

      J. F. Crawford, for the appellant.

      Doyle & Fitts, for the respondent.
   Landon, J.:

Section 66 of the Code of Civil Procedure is explicit in regard to the lien of an attorney upon his client’s cause of action for his services. The amount of it is governed by agreement, express or implied, which is' not restrained by law.” It attaches upon the service of the first pleading, “ and cannot be affected by any settlement between the parties before or after judgment.” Ho notice of the lien need be given to the adverse party. The statute makes the lien complete. ‘Payment in settlement of the cause of action to the party himself without notice to the lienor, and without affording him an opportunity of protection, unless he has waived his rights, cannot prejudice him. A right so fully and completely vested must necessarily draw to itself a remedy adequate to its enforcement. The simplest remedy in the case of the attorney for the plaintiff, where the parties settle before trial, is to permit him to continue the action and recover so much upon his client’s cause of action as it existed before settlement, as equals the amount of the lien. Such was the course here pursued, and is sanctioned by authority. (Coster v. Greenpoint Ferry Co., 5 Civ. Pro., 146 ; S. C., 98 N. Y., 660 ; Wilber v Baker, 24 Hun, 24; Forstman v. Schulting, 35 id., 504; Pickard v. Yencer, 10 Week. Dig., 271; Albert Palmer Co. v Van Orden, 64 How., 79.) There are cases the other way, but, if we are right in supposing that the case first cited has been affirmed by the Court of Appeals, they cannot control the question here presented.

Judgment affirmed, with costs.

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

Judgment affirmed, with costs.


text:
    NEWTON R. BOND, Respondent, v. JULIA A. BOND, Individually, and JULIA A. BOND, as Executrix of the Last Will and Testament of JULIA A. GOOLD, EMILY M. FINN and SIDNEY H. FINN, Her Husband, Appellants.

      Foreclosure of a, mortgage by advertisement, under chapter 846 of 1844, requiring a notice to be served upon the personal representative of a deceased mortgagor — where there a/i'e none the foreclosure is valid against those upon whom service was made.

    Upon the trial of an action, brought to foreclose a mortgage given by Augustus A. Goold and Julia A., his wife, on September 2, 1885, to the plaintiff to secure a debt of Augustus, it was found by the referee that, on January, 1878, Mary Home died intestate, seized of the premises described in the mortgage; that, whatever title Augustus G. Goold had to the premises described in the mortgage he acquired by virtue of a sale in proceedings for the foreclosure, by advertisement, of a mortgage made by Mary Home; that, at the time of such statutory foreclosure, Mary Home was dead, and that no copy of a notice that such mort gage would be foreclosed was served upon her personal representatives.
    Upon an appeal by the defendants from a judgment affirming- the validity of the title acquired by Augustus G. Goold at such sale, the evidence given on the trial not forming a part of the record:

      Held, that the court would assume the truth of the findings of fact returned, and such other facts, not in conflict with the facts found, as might be necessary to uphold the judgment.

      Gardiner v. Schwab (110 N. Y., 650) followed.
    That, as the validity of the statutory foreclosure was assailed by the appellants, because it was affirmatively found that no copy of a notice that the mortgage would be foreclosed was served upon the personal representatives of Mary Home, deceased, the court would assume that she had no personal representatives, and that notice was served upon the other parties in interest.

      That where there are no personal representatives of the deceased mortgagor the foreclosure is, nevertheless, valid against those upon whom service is made.

      King v. Bunts (11 Barb., 191); Anderson v. Austin (34 id., 319); Cole v. Moffitt (20 id., 19); Hubbell v. Sibley (5 Lans., 51); Van Schaack v. Saunders (32 Hun, 515) followed; Mackenzie v. Alster (64 How. Pr., 388) not followed.
    That the spirit of chapter 346 of 1844, providing that such notice should be served, is that notice shall be given to those whose interests are to be affected, and that though its letter be not observed the spirit of the statute is respected by service upon the parlies in interest.
    Appeal by tlie defendant Emily M. Finn from a judgment of foreclosure of the County Court of Albany county, which was entered in the office of the clerk of Albany county on May 29,1888, upon the report of a referee before whom the issues in this case were tried.
    The issues were tried before a referee, and this appeal rests upon his findings; the evidence given upon the trial not forming part of the record. The complaint was in the usual form to foreclose' a mortgage given by Augustus G. Goold and Julia, his wife, to the plaintiff, to recover a debt of the former September 2, 1885. It alleged that Augustus G. Goold died intestate July 6,1887, leaving his daughters, the defendants Emily M. Finn and Julia A. Bond, his only heirs and next of kin. That Julia A. Goold, wife of Augustus, died January, 1887, leaving a will, which was admitted to probate, whereby the defendants Emily M. Finn and Julia A. Bond were made sole legatees and Julia A. Bond executrix.
    The complaint further alleged that the defendant Emily M. Finn claimed an interest in the premises which, if any, had accrued subsequent to the lien of the mortgage. The defendant answered, among other things, that neither of the mortgagors, Augustus G. Goold nor Julia, his wife, had any title or interest in the premises when they made the mortgage, and none since ; and that the defendant Emily M. Finn is the owner of an undivided one-eightli part thereof. The referee found that the evidence did not establish any right or title of the defendant in the premises prior to the lien of the mortgage, and that if she had any right or title it was subsequent thereto ; and that whatever right or title she may have had in the premises at the execution of the mortgage constitutes no defense to the action for foreclosure. The referee, at the request of the defendant, found that in January, 1878, Mary Home died intestate, seized of the premises in question as the owner thereof, leaving Julia A. Goold and Anna Hallenbeclc her sole lieirs-at-law. That Julia A. Goold died January 10, 1887, leaving a last will and testament, which was duly admitted to probate, whereby the defendant Emily M. Finn and Julia A. Bond were made her sole legatees and devisees. That whatever title Augustus G. Goold had to the premises, described in the complaint, at the .time he made the mortgage pi question, was by virtue of a statutory foreclosure by advertisement of a mortgage made by Mary Home to secure the payment of $1,000. That at the time of such statutory foreclosure Mary Home was dead, and that no copy of a notice that such mortgage would be foreclosed was served upon her personal representatives.

      W. Frothingham, for the appellants.

      D. C. Herrick, for the respondent.
   Landon, J.:

The defendant Emily M. Finn, as one of the devisees of Julia A. Goold, who died in January, 1887, became the owner of an undivided part of the mortgaged premises, unless the interest of Julia A. Goold, was cut oif by the statutory foreclosure by advertisement and sale under the mortgage made by Mary Home, who died intestate, seized, and owner of the premises in Janury, 1878, leaving Julia A. Goold one of her heirs-at-law.

As the evidence given on the trial is not returned in the record, we assume the truth of the findings of fact returned and such other facts as may be necessary to uphold the judgment, not in conflict with the facts found. (Gardiner v. Schwab, 110 N. Y., 650.) The validity of the statutory foreclosure is assailed by the defendant because it is affirmatively found that no copy of notice that the mortgage would be foreclosed was served upon the personal representatives of Mary Home, deceased. We may assume that -she had no personal representatives, and also that such copy of notice was duly served upon Julia A. Goold. The foreclosure was under the statute and prior to section 2388 of the Code of Civil Procedure. The statute (Laws 1844, chap. 346 ; 3 R. S. [5th ed.], 860) provides that notice that such mortgage will be foreclosed shall be given. “ 3. By serving a copy of such notice at least fourteen days prior to the time therein specified for the sale, upon the mortgagor or his personal representatives, and upon the subsequent grantees,” etc. The weight of authority, if such weight may be determined by comparison of the number of cases, is to the effect that where there are no personal representatives of the deceased mortgagor, the foreclosure is, nevertheless, valid against those upon whom service is made. (King v. Duntz, 11 Barb., 191; Anderson v. Austin, 34 id., 319; Cole v. Moffit, 20 id., 19 ; Hubbell v. Sibley, 5 Lans., 51; Van Schaack v. Saunders, 32 Hun, 515.) The case of Mackenzie v. Alster (64 How. Pr., 388) is the other way. It is a strong presentation of the doctrine, that unless the statutory condition precedent to a sale is complied with the sale is invalid. The latter case may be said to be the logical deduction from the litéral terms of the statute, the former cases to be such reasonable construction as is -adapted to the situation and promotive of justice. Why should the heir, who is served and thereby is enabled to protect his interests, be heard to complain in behalf of non-existent personal representatives ? The spirit of the statute- is, that notice shall be given to those whose interests are to be affected. The spirit of the statute is respected, though -its letter be not observed, by service upon parties in interest. The letter killeth but the spirit maketh alive, hence we conclude to follow the more numerous company of authorities. Mrs. Goold, therefore, was foreclosed, and hence the defendant took no title to the premises under her will. The discretion of the court below respecting costs was not improperly exercised.

The judgment should be affirmed, with costs.

Learned, P. J.; Ingalls, L, concurred.

Judgment affirmed, with costs.,


text:
    GEORGE McARTHUR, as Committee of the Personal Estate of EBENEZER LARMOUTH, a Person of Unsound Mind, Respondent, v. HENRY GORDON, ROBERT DAVIS and ELIZABETH DAVIS, His Wife, Appellants.

      What m'iting will make the person signing it a trustee of an express trust—Revised Statutes, part 2, chapter 7, title 1, section 7, as emended by chapter 883 of 1860 — a purchaser of the land described in the writing takes it impressed with the trust — the trustee cannot divest himself of the trust—the statute of limitations does not begin to mm until the trust is repudiated— the trustee cannot, by any contract or agreement made with a pw'chaser, change the terms of the trust.

    On the 16th day of October, 1874, Ellis McDouall conveyed her farm of forty-five acres to the defendant Gordon, who was her pastor, in consideration of one dollar and other valuable considerations. Mrs. McDouall, who was at that time old and feeble, then resided upon this farm with her adult son, Ebenezer Larmouth, who was feeble in intellect and dependent upon her for support, and she and her son continued to reside upon the same after the conveyance was made, and until her death, which occurred March 8, 1876. On April 19,1876, the defendant Gordon executed, under seal, and acknowledged and caused to he recorded in the county clerk’s office, an instrument by which he declared to all men, by these presents: “That, because of certain real estate duly conveyed to me by Ellis McDouall, I, * * * consider myself * * * bound to appropriate, or cause to he appropriated, for the comfortable support of Ebenezer Larmouth during his life, all the rents, after deducting necessary expenses of said real estate; or, if said real estate should be sold, the proper maintenance in board and clothing should be a first lien upon said real estate during the life of said Ebenezer Larmouth.”
    On January 33, 1877, the defendant Gordon conveyed the said real estate to the defendant Davis by a deed, expressed to he in consideration of $500, and the covenants and conditions therein contained, to the effect that the said defendant Davis should provide and furnish the said Ebenezer Larmouth, during his natural life, with suitable clothing, food and necessary lodging, medical attendance and medicine; that the support and maintenance of the said Larmouth should constitute and remain an indefeasible lien upon the premises thereby conveyed during his natural life.
    Davis took possession of the premises and leased a dwelling-house and a part of the land to one Plunkitt, upon the agreement that Plunkitt should support Larmouth on the premises. Larmouth, having refused to accept the offer of Davis and Plunkitt, wandered away and was kept alive by the kindness of friends, nothing having been applied by either Davis or Gordon towards his support from the income of the farm.
    In an action brought by the plaintiff, as committee of Ebenezer Larmouth, to compel the defendants to account for the amount of the rents and profits of the farm.

      Held, that, by section 7 of title 1 of chapter 7 of part 3 of the Revised Statutes, as amended by chapter 333 of 1800, the writing subscribed by the defendant Gordon, placed upon the record after Mrs. McDouall’s death, and the deed given by him to Davis in 1877, made -Gordon the trustee of an express trust to receive the rents of the farm and apply them, less the necessary expenses, to the use oí Ebenezer Larmouth during the life of the latter.
    That the title of the farm was in Gordon, and that Larmouth had no authority or interest in the lands but was entitled to enforce the performance of the trust in equity.
    That, as the declaration of the trust itself permitted a sale of the premises and was recorded, and the deed to Davis showed that he had actual notice of a trust, he took the premises impressed with the trust and subject to it.
    Davis gave a mortgage upon the premises to Gordon for $400, 1o be paid in 1893, with annual interest in the meantime, which interest was to be used for such purpose as the said Gordon and one James Maxwell might mutually agree upon, the mortgage reciting the grant to be intended as security for the support and maintenance by Davis of Ebenezer Larmouth during liis natural life. Davis paid the interest of twenty-four dollars per year to Gordon, none of which was paid to Larmouth.

      Held, that as Gordon accepted the trust he could not divest himself of it without leave of the court, and was liable to the committee for the entire default, and that Davis was chargeable, as a co-ivrong-doer with Gordon, to the extent that Davis retained what Larmouth should have received, less the twenty-four dollars per year which he paid to Gordon.
    That tiic statute of limitations, which was interposed as a defense, had not begun to run with respect to the trust itself, which still remained in full force, as it had not been repudiated by the defendants.

      Lammer v. Stoddard (103 N. Y., 672) followed.
    That Larmouth had at least ten years, after an)' default, to enforce the equitable remedy conferred upon him by section 60 of the statute of uses and trusts.
    The defendant Davis claimed that, by his contract with Gordon, he was only bound to furnish Larmouth with maintenance upon the premises itself, and that he was ready, and offered to do this, but that Larmouth refused to accept it, and that if Larmouth did not receive the support offered it was his own fault.

      Held, that, inasmuch as the trust was impressed upon the farm, it was incompetent for Gordon to make any contract or agreement with Davis whereby the terms of the trust should be in any way diminished or its performance made to depend upon a new condition.
    Appeal from a judgment in favor of tlie plaintiff, entered in th .office of the clerk of the county of Washington on April 26, 1888 upon the decision of the court after a trial had before a Washingto County Special Term.
    The complaint alleged that the defendant Gordon was the owner as trustee, of a farm, charged with a trust in favor of Ebeneze Larmouth, to apply the rents thereof to the support of the latter during his life; that he had defaulted in making such application and had sold the farm to the defendant Davis, and suffered him to receive and enjoy the rents and profits thereof. Judgment was asked against both defendants for the amount of the misapplied rents and profits, and for other relief. _ The answer denied the existence of the trust, and alleged that proper provision had been made for Larmouth’s support, which he refused to accept.
    On the 16th day of October, 1874, Mrs. Ellis McDouall conveyed her farm of forty-five acres to the defendant Gordon, by warranty deed, “ in consideration of one dollar and other valuable considerations to her duly paid.” Mrs. McDouall, at that time, was old and feeble, and resided upon this farm with her adult son, Ebenezer Larmouth, who was feeble in intellect and dependent upon her for support.' Gordon, the grantee, was her pastor. She and her son continued to reside upon the farm after the conveyance, and until her death, which occurred March 3, 1876. On the nineteenth day of April following Mrs. McDouall’s death, the defendant Gordon executed, under seal, and acknowledged and caused to be recorded in the county clerk’s office, the following instrument:
    “ Know all men by these presents: That, because of certain real estate duly conveyed to me by Ellis McDouall, late of the town of Jackson, Washington county, New York, I, Henry Gordon, of Coila, Washington county, New York, do, of my own free will and accord, hereby consider myself, heirs, executors, or administrators, holden and firmly bound to appropriate, or cause to he appropriated, for the benefit of Ebenezer Larmouth during his life, all the rents, after deducting necessary expenses, of said real estate; or, if said real estate should be sold, the proper maintenance in board and clothing should be first lien upon said real estate during the life of said Ebenezer Larmouth; the subscriber to this bond distinctly asserts that its obligations on him are limited to the rents of said real estate, or to the interest on the purchase-money, should said real estate be sold.
    “ Signed, with my hand and seal, this 19th day of April, 1876.
    “HENRY GORDON.” [l. s.]
    This farm was the only real estate conveyed to Gordon by Mrs. McDouall, and the only real estate she had had in her lifetime.

      On the 22d day of January, 1877, the defendant Gordon conveyed the said real estate to the defendant Davis by a deed expressed to be in consideration of $500 and the covenants and conditions therein contained. The deed was executed by Gordon and Davis, and contained the following covenants: “ This conveyance is made subject to the following^ conditions, viz.: That the said party of the second part shall provide and furnish Ebenezer Larmouth, of the town of Jackson aforesaid, during the natural life of said Larmouth, suitable clothing, food, and necessary lodging, medical attendance and medicine, which said clothing, food, lodging, medical attendance and medicine the said party of the second part, for himself, his heirs, executors and administrators, hereby covenants and agrees, to and with the said party of the first part, to furnish to the said Larmouth as aforesaid. And it is hereby mutually covenanted and agreed by and between the parties to these presents, for themselves, their heirs, executors and administrators, that the suppiort and maintenance of the said Larmouth, as aforesaid, shall Constitute and remain an indefeasible lien upon the premises hereby conveyed during the natural life of the said Larmouth.”
    Davis and his wife, at the same time, executed and delivered to Gordon a mortgage to secure the payment to him of $400, and annual interest thereon, “ the interest to be used for such purposes as said Gordon and James Maxwell may mutually agree upon;” the mortgage further reciting as follows: “ This grant is also intended as security for the support and maintenance, by the said Robert Davis, his heirs, executors and administrators, of Ebenezer Larmouth, during the natural life of said - Larmouth, according to the condition of a bond this day executed and delivered by the said Robert Davis to the party of the second part.” The bond provided that Davis “ shall provide and furnish Ebenezer Larmouth, during his natural life, suitable clothing, food, lodging and necessary medical attendance and medicine, according to a condition and covenant contained in a deed of conveyance made and executed by Henry Gordon and wife and the said Davis.”
    Davis took possession of the farm and leased the dwelling-house and a part of the land to Plunkitt, upon the agrément that Plunkitt should support Larmouth on the premises. The agreement between Gordon and Davis was that Davis should support Larmouth on the premises. Davis and Plunlcitt offered Larmouth support upon the premises; but Larmouth, being of unsound mind, conceived that he was the owner of the premises, and refused to live upon them under permission of Davis or Plunlcitt, and wandered away and was kept alive by the kindness of friends and kindred. Davis paid Gordon the interest as it fell due upon the $400 mortgage, but nothing was applied from the interest or from the income of the farm towards Larmouth’s support. Gordon collected nothing beyond the interest from Davis. The plaintiff was appointed committee of the person and estate of Larmouth in March, 1877, and after demanding from Gordon that he account and pay to him the income and profits of the farm from Mrs. McDouall’s death, upon leave of the court, brought this action.

      A. D. Wait, for the appellants.

      M. Hale, for the respondent.
   Landon, J.:

The Revised Statutes provide that no trust concerning lands shall be declared unless by operation of law or by a deed or conveyance in writing, subscribed by the party declaring the same. (2 R. S., 135, § 6.) But chapter 322, Laws 1860, provides that the above provision of the Revised Statutes shall not be construed “ to prevent any declaration of trust from being proved by any writing subscribed by the party declaring the same.” “Any writing subscribed by the party declaring the same ” are words broad enough to embrace the writing subscribed by the defendant Gordon, and placed upon record after Mrs. McDouall’s death, and, also, the deed given by him to Davis in 1877. The statutes makes no requirement as to the time when the writing shall be made or what becomes of it after it is made; it excludes parol evidence but admits written evidence, provided the writing is subscribed by the party declaring the trust. It is of no consequence, therefore, that the writing subscribed by Gordon was not contemporaneous with the deed to him, or was never delivered by him to any one except the county clerk; the only material facts are, that the writing exists, properly subscribed, and that it declares a trust. These facts being undisputed, the paper is evidence that the trust was duly declared and also of its terms. (Cook v. Barr, 44 N. Y., 156; Van Cott v. Prentice, 104 id., 45 ; Wright v. Douglass, 7 id., 564.)

The defendant Gordon, by the sealed instrument subscribed by him April 19, 1876, declared to “all men by these presents, that because of certain real estate duly conveyed to one Ellis McDouall, I, * * * consider myself * * * bound to appropriate, or cause to be appropriated, for the comfortable support of Ebenezer Larmouth, during his life, all the rents, after deducting necessary expenses, of said real estate.”

That this- instrument was executed and placed on record by Gordon in testimony of his agreement with Mrs. McDouall, and to declare the object and conditions of her deed to him, was an inference of fact sufficiently supported by the deed and declaration themselves, construed in the light of the circumstances and of the relations of the parties to each other, and was greatly strengthened by the declarations of Gordon himself, made immediately upon the death of Mrs. McDouall.

This instrument is a declaration of trust. Gordon thereby, in effect, declares himself to- be the trustee of an express trust to receive the rents of the farm and apply them, less the necessary expenses, to the use of Ebenezer Larmouth during the life of the latter. (1 R. S., 728, § 55.) The title to the farm is in Gordon; Larmouth takes no estate or interest in the land, but may enforce the performance of the trust in equity, (p. 729, § 60.) The declaration of trust is separate from the conveyance to Gordon, and, therefore, section 65 of the statute, declaring that where the trust is expressed in the instrument creating the estate, every conveyance or act of the trustee in contravention of the trust is void, does not strictly apply to Gordon’s conveyance to Davis. The declaration of trust itself permits a sale of the premises. It provides “ that if such real estate should be sold, the p>rop>er maintenance in board and clothing should be a first lien up)on said real estate during the life of said Larmouth; the subscriber to this bond distinctly asserts that, its obligations on him are limited to the rents of said real estate or to the interest on the pDurchase-money.” Gordon could, therefore, sell the premises. The declaration of trust, however, was recorded. The recording act embraces every instrument in writing by which the title to real estate may be affected in law or equity. (1 R. S., 762, § 38.) This declaration did affect Gordon’s title in equity, and, therefore, its record was notice to Davis, his subsequent grantee. (Bacon v. Van Schoonhoven, 19 Hun; 158; S. C., 87 N. Y., 446; Grandin v. Hernandez, 29 Hun, 399.) The deed to Davis shows that he had actual notice of a trust, and he therefore was put upon inquiry as to its extent. He took the premises impressed with the trust and subject to it. The conveyance to him appears to have been made in order practically to secure its execution. But, Gordon having accepted the trust could not divest himself of it without leave of the court. (Brennan v. Wilson, 71 N. Y., 502.) Davis held the land subject to the trust in favor of Barmouth, that its net income should be applied by the trustee to Barmouth’s support. Davis gave a mortgage of $400 to Gordon upon the premises, to be paid in 1892, with annual interest in the meantime. Davis paid the interest, twenty-four dollars per year, to Gordon. Davis is not responsible for Gordon’s failure to apply this interest to Barmouth’s support. If Davis had paid the proper rent or balance over the interest to Gordon, he would not be liable for Gordon’s non-application of it to Barmouth’s support, since Gordon is trustee and not Davis.

But since, with full notice, he has had the fund from which the maintenance was to be raised, and he has not raised it, except the twenty-four dollars per year, he is in default, primarily, it may be admitted, to Gordon the trustee, but equitably to Barmouth, the cestui que trust / and since Davis and Gordon made the contract whereby Barmouth was relegated to Davis for support, and Davis made a contract whereby Barmouth was transferred to Plunkitt, and the result of the several contracts was that Barmouth got nothing, Davis may be charged as a co-wrong-doer with Gordon to the extent that Davis still retains what Barmouth should have received. (Story’s Eq., § 1131 a.) Thus Gordon is liable to the extent of the entire default, and Davis, as his coadjutor, from the date of his purchase, less twenty-four dollars per year.

The trial court has measured that liability at tne rate of $175 per year from March 6, 1876. Davis’ liability is for one year less. Complaint is made that it is an exorbitant allowance. It seems to be within the evidence, and we do not feel authorized to reduce it.

The statute of limitations is interposed. The statute has not begun to run with respect to the trust itself, for that has not been repudiated, and the trust remains in full force. (Lammer v. Stoddard, 103 N. Y., 672.) The sixtieth section of the statute of uses and trusts, above cited, authorizes Larmouth to enforce the performance of the trust in equity. He has, at least, ten years after any default to enforce his equitable remedy. (Code of Civil Pro., § 388.) Ten years from his mother’s death had not elapsed when this action was commenced.

The defendants complain that parol evidence was improperly received. It was competent to give sufficient evidence of the surrounding circumstances to enable the court to ascertain who the parties were, what were their relations to each other, and what farm it was they were dealing with; in other words, sufficient to identify persons, parties and subject-matter. The trust itself is that which the writing declares and defines. Since the trial court properly construed the writing and adjudged its effect, it is immaterial whether the case, in this respect, was cumbered with improper evidence.

The defendant Davis claims that, by his contract with Gordon, he was only bound to furnish Larmouth with maintenance upon the farm itself, and that he was ready and offered to do this, but that Larmouth refused to accept it, and that if Larmouth did not receive support, it was his own fault. The answer to this is that, since the trust Was impressed upon the farm, it was incompetent for Gordon to make any contract or agreement with Davis whereby the terms of the trust should be in anywise diminished, or its performance made to depend upon a new condition. And this the law presumes that Davis knew, and, therefore, knew the risk he took when he stipulated for the new condition. The first and unconditional income from the farm was due to Larmouth, and when Davis took it, he undertook that he would not defeat Larmouth’s right.

The judgment is, in the main, right, but needs some modification. Ho vendor’s lien exists in favor of Larmouth. He was not the vendor, but, if we may so speak, he was the vendee of an equity in the premises. The statute, already cited, defines his estate and prescribes his remedy. (Sec. 60, supra) The title to the farm is in Davis, subject to the execution of the trust. His title is subject to sale upon execution. Gordon is still trustee, and his removal is not asked. For aught we know he and Davis, instructed by this judgment, will be zealous in the full performance of the trust. If it shall be necessary to remove the trustee and appoint another, and commit the custody of the farm to his possession during the life of Larmoutli, the facts justifying such action do not now fully appear.

The judgment against Gordon is affirmed as to the amount of his liability. While we see no escape from this conclusion, we are impressed with the many circumstances of the case which show that Gordon sought to make provision for Larmouth, and that his failure to do so has been of little advantage to himself. We, therefore, in our discretion, direct that the costs of the respondents be paid from the proceeds of the judgment. The judgment against Davis must be reduced by deducting $175 for the year ending March 6, 1877, and interest to the date of the entry thereof, and also by twenty-four dollars per year from March 6, 1878, with interest to the entry of the judgment So reduced the judgment is against him jointly with Gordon, and is affirmed without costs in this court. The provision for the sale of the premises otherwise than upon execution is stricken from the judgment. The order to be settled in accordance with this opinion.

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

Judgment modified as expressed in opinion, and as so modified, affirmed without costs to any party.