author: Hardin, P. J.:

text:
    MARY J. ALLPORT, as Executrix of MARIAH E. HOUSE, Deceased, Appellant, v. LEWIS D. JERRETT and Another, as Executors of WILLIAM C. HOUSE, Deceased, and AUGUSTA J. COLE, Respondents.

      Will — widow's support — power of sale given to executors for that purpose — failwe to exercise it — equitable relief after the widow’s death.

    A. testator, by liis will, gave his widow the use of all the residue of his property, real and personal, during her life; and further provided that if such use proved insufficient for her support, he, then, in such ease, directed his executors to sell so much of his property as might he necessary for that purpose, and to use the avails therefor.
    The personal property left by the testator was insufficient to pay his debts. During the last illness of the widow debts were incurred for her support and nursing, for the attendance of physicians and funeral expenses, .which were not paid. Subsequently the executors of the husband accounted- and wore discharged. In an action brought by tlie executrix of the widow to recover the amount of such expenses.

      Held, that it was the intention of the testator to charge the support of his widow upon the corpus of his estate in case its income proved insufficient to support her, and that a court of equity had power to enforce the payment of expenditures made for such purpose by a sale of the real estate.

      That tlie fact that the power of sale had not been exercised by the testator’s executors during his widow’s lifetime was not material, and that said power survived.
    That a bequest to a daughter of the testator of “all that may remain of my property, real and personal,” clearly showed an intent that said daughter should receive only wliat remained after satisfying- the charge for the widow’s support.
    Appeal l)y Alary J. Allport, as executrix of tlie last will and testament of Alariali E. House, deceased, from a judgment of the Supreme Court, entered in the office of the clerk of tlie county of Oswego on the 25tli day of June, 1890, dismissing the complaint upon the merits after a trial before a referee.
    Plaintiff is executrix of the last will and testament of her mother, Mariali E House. On January 24, 1885, William C. House, then a resident of New Haven, Oswego county, died, leaving him surviving his widow, Alariali E. House, then about seventy-two years of age, and his two daughters, the plaintiff herein and Augusta J. Cole, one of the defendants. The will of William C_. House was admitted to probate in Oswego county, and Jerrett and Cole were named as executors in the will, and as such are defendants in this action. At the time of the death of House he was seized and possessed of a farm of about fifty acres, worth in the neighborhood of one thousand three hundred dollars. His personal property was not sufficient to pay his debts. His widow remained thereon, occupying a portion of the house after his death, and was able to rent the same to a tenant who supplied her with table board and paid lier twenty-five dollars a year, and who, after the executors caused a mortgage to he placed upon the farm to pay the debts of the testator, amounting to the sum of $403.3G, ivas induced also to pay the interest on that mortgage as a full consideration for the use of the real estate. Some two months before her death Mariali E. House was taken ill, and remained seriously ill until her death, which occurred oil the 22d day of Alay, 1889. During her last sickness she was boarded and cared for by various parties, who furnished her with various kinds of food, attended and nursed her, and boarded the other nurses who were employed; two physicians were also employed. The expenditures for the physicians, for the nurses, and for her care and board, remained unpaid at the time of lier death, the defendants having contributed nothing thereto or therefor. In the will of William C. House was the following provision : “After all my lawful debts are paid and discharged, including my funeral expenses, and after my wife, Mariah E., shall have set off to her all she is legally entitled to by law to hold, I give and bequeath to my said wife, Mariah E. House, the use of all the residue and remainder of my property, real and personal, for her use and benefit, and the avails of the same, for and during her natural life ; and if, from any cause, the use of said property shall prove insufficient for her support, then, in such case, I hereby direct my executors, hereinafter nominated and appointed by me, to sell and dispose of so much of my property as may be necessary for her support, the avails of the property so sold to be used for her benefit. After the decease of my said wife I give and bequeath to my younger daughter, Augusta, now the wife of Garrett S. Oole, the residue and remainder of all that may remain of my property, real and personal, to her and to her heirs and assigns forever, on the condition, however, that she pay to my oldest daughter, Jennie M., now the wife of Smith Allport, the sum of $60 within six months after the decease of my said wife; it may be for the interest of my said estate to sell and dispose of some or all of my property before the death of my said wife, if she should prefer to have it sold, and use the interest of the avails for her support, and others most interested should be of that opinion; then, in that case, I hereby authorize and empower my executor, hereinafter appointed by me, to sell and dispose of all my property, eitherJbefore or after the death of my said wife, and make and execute good and sufficient deed or deeds to the purchaser or purchasers, as the case may be, as sufficient conveyance of the said property.”
    As conclusions of law, the referee, before whom the action was tried, found:
    “(1.) That the said last will of William 0. House vests no estate in his said executors, but that said will created a power in trust to sell said real estate upon the happening of the contingency that any portion of the avails of the same should become necessary, over and above the use and income of his said property, for the support of his said wife Mariah E. House. (2.) That it was the intention of the said testator, as expressed in his said last will, that such sale, if made at all, of his said real estate by his said, executors for the support and benefit of his said wife, should be made only in her lifetime. (3.) That by the terms of said will said real estate vested absolutely in said defendant, Augusta J. Cole, immediately upon the deatli of the said widow, Mariah E. House, subject only to the payment of $60 to the plaintiff within six months after the decease of the said widow. (4.) That said $60 was paid in accordance with the terms of said-will within sixty days from the time of the decease of the said Mariah E. House. ( 5.) That the use and income of the property left at his death by said "William C. House was sufficient for the support of said Mariah E. House, except during her last sickness, when it was insufficient. (6.) That the said Mariah E. House must be deemed to have acquiesced in the non-execution of said power in trust to sell said real estate for her support and benefit by said executors. (1.) That .the power in trust to the executors of the will of William C. House, given by his will, to sell his real estate for the support and benefit of his said wife, terminated with the death of his widow, Mariah E. House; ” and then ordered that the complaint be dismissed, with costs.

      J). P. Morehouse, for the appellant.

      W. II. Kenyon, for the respondents.
   Hardin, P. J.:

We think the language of the will of Mr. House clearly indicates "that his intention was to give. “ the use of all the residue and remainder of my (his) property, real and personal, for her use and benefit and the avails of the same for and during her natural life.” We think it was also his intention that in the event of the avails or use being insufficient, that her support should be and was made a charge upon the corpus of his estate; such intention was clearly evidenced by the use of the following words, viz.: “And if from any cause the use of said property shall prove insufficient for her support then, in such case I hereby direct my executors hereinafter nominated and appointed by me to .sell and dispose of so much of my property as may be necessary for her support, the avails of the property so sold to be used for her benefit.” The language is so clear and explicit that no doubt can be entertained of the intent to charge her support upon the body of his estate in the event the use or income should be inadequate. This intent is made clear by the language subsequently used in the will containing a devise to his daughter Augusta; the language is as follows: “After the decease of my said wife I give and bequeath to my younger daughter Augusta, now the wife of Gerrett S. Cole, the residue and remainder of all that may remain of my property, real and personal, to her and to her heirs or assigns forever, on the condition, however, that she pay to my oldest daughter Jennie M., now the wife of Smith Allport, the sum of sixty dollars within six months after the decease of my said wife.” We think it is a mistake to suppose that he intended to give Augusta all his “real and personal” on the condition that she pay sixty dollars; on the conti’ary, it was his intent to give only so much of his real and personal as should be “the residue and remainder” after satisfying the support given to his widow and charged upon his real estate. The words “ all that may remain of my property, real and personal,” clearly evince an intent that his daughter Augusta should only receive what remained after fully satisfying the requirements of the charge imposed upon his property in favor of his widow.

In Shallcross v. Finden (3 Ves., Jr., 738), it was held that a devise after payment of debts was equivalent to a charge of the debts.

In Williams v. Chitty (3 Ves., Jr., 545), it was held there is “no difference between debts and- legacies in an implied charge upon real estate by will.” We are, therefore, of the opinion that the daughter Augusta received from her father the real estate charged with her mother’s support, and 'that such expenditures as were necessary for her support in equity should be declared a lien upon the real estate remaining unsold at the time of the death of the mother. There seems to have been a steady, if not studied, neglect by the executors of Mr House in carrying out the provisions of his will intended to provide a liberal support for his widow out of his estate. That neglect ought not to enure to the benefit of the devisee of the real estate, as she should only receive what remains after liquidating the necessary expenditures made in support of her mother beyond such sums as were received from the income of the estate. (Smith v. Van Ostrand, 64 N. Y., 285.)

We think a court of equity has jurisdiction to enforce liquidation of such expenditures.

In Lent v. Howard (89 N. Y., 181), it was said: “ Whatever view may be taken of the general jurisdiction of courts of equity, in the absence of any statutory or legislative policy, to abrogate continual trusts created for the purpose of providing a sure support for the widow or children of a testator, or other beneficiary, the indestructibility of such trusts -here, by judicial decree, results, we think, from the inalienable character impressed upon thein by statute.”

Our attention is called by the respondent to Thomas v. Pardee (12 Hun, 151). The language used in the will in that case was different from the language in the will before us. We see nothing used in the language of the opinion that is adverse to the views which have already been expressed. In the course of the opinion in that case, it was said: “ He (the testator) did not design to give his wife either the principal or interest as such, but whatever she needed for her comfort and support, she being the judge. She coiild take out from the estate as a whole, but what she did not take out, what remained at her death, was to go to others.” In the case before us, the personal estate of Mr, House was used up, and it clearly appears the income was inadequate for the support of his widow, and, therefore, the sum required for her support became an equitable charge upon the real estate. (Will. Eq. Juris., p. 489.)

In Glen v. Fisher (6 Johns. Ch., 35), it was said: “ He who accepts a benefit under a will must conform to all its provisions, and renounce every right inconsistent with them. This is an obvious and settled principle in equity. He accepts of the devise under the condition of conforming to the will, and a court of equity will compel him to perform the condition; for no man, says Chief Baron Eyre (Blake v. Bunbury 1 Vesey, Jr., 523), shall be allowed to disappoint a will under which he° takes a benefit.” (See, also, Birdsall v. Hewlett, 1 Paige, 33.)

In Thurber v. Chambers (66 N. Y., 42), Chief Judge Church observed: It is a general rule that provisions in a will intended for the support of the wife, will receive the most favorable construction to accomplish the purpose intended,” and that observation was approved in Stimson v. Vroman (99 N. Y., 80).

Yfe think the learned referee fell into an error in supposing that because the expenditures for her support were not actually paid by the executors of her deceased husband in her lifetime that they could not be enforced upon property left by the testator charged with her support. Such expenditures may be ascertained in this action and declared a charge upon the real estate devised to the daughter Augusta, and if she shall not pay the same within a specified time the real estate, or so much thereof as shall be necessary, may be sold under the direction of this court, and the funds realized from the sale used to liquidate such expenditures.

We think the judgment should be reversed.

Martin and Merwin, JJ., concurred

Judgment reversed and a new trial ordered before another referee, with costs to abide the event.


source: Caselaw Access Project

license: Public Domain

text:
    BENNETT F. BROWN, by WELTHA R. BROWN, his Committee, Respondent, v. ANDREW B. MILES, Jr., Appellant.

      Insane — deed by one who has contracted to convey land and is subsequently deala/red to be a lunatic — right of the purchaser, as to a specific performance or a retu/rn <of the consideration.

    A deed by one who lias been judicially declared to be a lunatic is absolutely void.
    A lunatic, before lie had been declared to be such, executed a written agreement to convey certain real estate to a purchaser, who thereupon paid the consideration therefor, went into possession and made improvements upon the premises.
    After proceedings in lunacy had been had the lunatic and his wife executed a deed in pursuance of such agreement.
    An action of ejectment to recover possession of the premises was thereafter •brought by the committee of the lunatic, but no offer was made to restore to the purchaser the consideration paid by him, or to pay for the improvements.

      Held, that, in the absence of proof of fraud, or that the lunatic was such when he entered into the written agreement, or that the purchaser had not contracted in good faith, he might justify his possession under such agreement.
    That if such deed could not stand the purchaser was entitled either to a decree for the specific performance of the written agreement or to a return of the consideration paid thereon.

      Appeal by the defendant Andrew B Miles, Jr., from a judgment. of the Supreme Court, entered in the office of the clerk of the county of Jefferson on the 15th day of December, 1890, adjudging that the plaintiff recover of the defendant certain real property; 'that the plaintiff was the owner in fee thereof; that he recover possession thereof, and damages for its use; and also from an order, entered in said clerk’s office on the same day, denying the defendant’s motion for a new trial upon the minutes, after a trial at the Jefferson Circuit before the court and a jury.
    The jury found for the plaintiff, and “ that he is the owner in fee of the premises, and awarding him damages of $60 for the use and occupation of the premises.” The defendant moved for a new trial on the minutes “ on the grounds that the verdict is contrary to law and against the evidence, and against the weight of evidence, and also upon the exceptions taken during the trial.” The motion was-denied, and the defendant took an exception thereto. Judgment was entered upon the verdict, and the plaintiff appealed from the judgment, and from the order denying a new trial. The case contained all the evidence.
    Plaintiff’s complaint alleged that proceedings were had da lunáticovnquirendo, and that, upon an inquisition, Bennett F. Brown was “ found to be a person of unsound mind; ” and that on the 29th of April, 1890, Weltha R. Brown was appointed the committee of liisperson and estate, and that she qualified and entered upon the performance of her duties. “ That since on or about April 15th, 1889, at all the times hereinafter referred to, the said Bennett F. Brown was a person of unsound mind.” * * * “ That on or about July 1st, 1889,. the said Andrew B. Miles, Jr., received and accepted from the said Bennett F. Brown what purported to be a conveyance by warranty deed of the premises hereinafter described, which was executed at about that time by the said Brown, who was then insane, but the said conveyance was at the time of the execution thereof and has ever since remained utterly void and of no effect for that reason.” The complaint further alleged that Bennett F. Brown “ is the owner in fee of the said premises hereinafter described, and was possessed thereof until about the 1st of July aforesaid, and that while the plaintiff was-such owner and in possession of the said real estate, the said defendant, on or about July 1st, 1889, wrongfully and unlawfully entered in and upon the said promises and property hereinafter described, and wrongfully and unlawfully withholds the same from the plaintiff.” It contained a description of the land containing 24.09 acres of land “ as surveyed by W. A. Lyttle, June 3d, 1889,” and asked for judgment against the defendant c' for the recovery of the possession of the said real property, and for the damages aforesaid, together with the costs of this action.”
    In the defendant’s answer he “ admitted that on or about the 1st-day of July, 1889, he received and accepted a warranty deed of the premises described in the complaint executed by the said Bennett F. Brown and Weltha R. Brown, his wife;” he then denied the other allegations of the complaint; and for a defense he sets up that on the 19th day of April, 1889, “ the said Bennett F. Brown executed and delivered to this, defendant his agreement in writing, whereby, for value received, he agreed to give to this defendant a. good and sufficient warranty deed of all the land south of a line running at right angles from the line fence,” etc., which agreement, it is alleged, acknowledged the receipt of the payment therefor, and provided that a deed was to be given after a survey of said land. The answer also alleged that the consideration of the agreement was a “ horse, wagon, cow sold and delivered by said Miles to said Brown at the agreed price of $220; the use of a stallion for two mares, $20 each; cash $5, amounting to $265 ; ” and “ that on the 3d day day of June, 1889, he procured a survey of said premises, in pursuance of said agreement, to be made by W. A. Lyttle, a practical surveyor, reduced to writing and delivered to said Brown, which survey was incorporated in the deed hereinafter mentioned.” It is further alleged that Brown procured a deed to be drawn of the premises according to the survey, and that the deed was executed by Brown and wife, and duly acknowledged before one Wager, a. notary public, and was duly delivered, to the defendant on said 1st. day of July, 1889. It is also alleged that Brown and wife executed a certain instrument in respect to a mortgage of $750 upon the premises conveyed, which instrument is set out in the answer ; and the defendant alleges “ that during and at the times of the several transactions hereinbefore mentioned, the said Bennett F. Brown was sane and of sound mind, and fully competent to transact business ; ” and the defendant alleges that immediately “ after the execation and delivery of said deed as aforesaid, he entered into the possession of said premises and made improvements thereon; that there has been no offer to restore to this defendant the consideration so paid by him as aforesaid, or compensate him for the improvements so made by him on said premises as aforesaid.”
    This action was not commenced until the 5th day of May, 1890. At the close of the plaintiff’s evidence the defendant moved for a nonsuit j the motion was denied and the defendant took an exception.. In the course of remarles made in denying the motion, the court said: “ The plaintiff may recover upon an equitable title, or the defendant may defeat a recovery upon an equitable title.” In the course of the charge delivered, the court observed :• “ So that, if you are satisfied, I again repeat, that Brown was a lunatic at the time this deed was executed and delivered to Miles, * * * if you find that he was incompetent to do business at that time, you will find a verdict for the plaintiff, and in that verdict you will find that the plaintiff is the owner in fee of this 24 acres of land. Your verdict will find that, as that is the title he holds, if he holds any, his deed to Miles being of no account if he was a lunatic.” Counsel for the defendant asked the court to hold “ that the action of ejectment cannot be maintained upon the proof of this case.” The court refused so to hold, and an exception was taken thereto.

      L. J, Dorwvn,, for the appellant.

      Elon R. Brown, for the respondent.
   Hardin, P. J.:

It is insisted by the learned counsel for the appellant that a deed made by a lunatic is “voidable only and not absolutely void.” We think the weight of authority is against the proposition. (Van Deusen v. Sweet, 51 N. Y., 378; Valentine v. Lunt, 115 id., 497; Riggs v. American Tract Society, 95 id., 503.) This court is already committed upon the proposition by its decision in Goodyear v. Adams ( 5 N. Y Supp., 275; S. C., affirmed, 119 N. Y., 650), and the doctrine finds support in Aldrich v. Bailey (28 N. Y. St. Rep., 571), and in Johnson v. Stone (35 Hun, 383); Carter v. Beckwith (40 N. Y. St. Rep., 347).

( 2.) If it be assumed that the verdict of the jury is sustained by the evidence so far as the verdict pronounces upon the soundness of Brown’s mind, July 1, 1889, being the time of the execution of the deed, still the question must be considered whether at the time of the execution of the contract he was competent to make the same, which contract was made in April, 1889. If the contract was valid, the possession by the defendant of the premises may be referred to and upheld under the contract; and in considering the question of whether the defendant wrongfully withheld possession at the time cf the commencement of this action, the validity of the contract may be considered. It would seem, from the language of the charge and from the refusal to hold, that the plaintiff could not maintain the action, the court impliedly ruled, as a matter of law, that the contract was invalid. The language used by the judge in the course of his charge seems to bear out that view; he observed to the jury, viz.: “ So that, if you are satisfied, I again repeat, that Brown was a lunatic at the time this deed was executed and delivered to Milos, * * * if you find that he was incompetent to do business at that time, you will find a verdict for the plaintiff.” Again, in the course of the charge the judge observed: “The ground upon which the plaintiff seeks to recover is that, at the time when the deed was executed, on the 1st of July, 1889, he was a lunatic, and, therefore, incompetent to transact any business which would in any manner affect his rights or interests in this property.” It seems that the •question of the competency of Brown to enter into the contract of April, 1889, was not distinctly and clearly presented to the jury. However, if it be assumed that the question was passed upon by the jury, we are of the o]iinion that the evidence was insufficient to uphold a finding that Brown was of unsound mind when he entered Into the contract to sell the premises on the 19th of April, 1889. If the verdict rests upon the finding upon that question, it ought to be set aside as contrary to evidence; if that question has not been passed upon by the jury, the verdict ought not to stand.

In Crary v Goodman (2 Kernan, 266), it was held, viz.: “ In an action to recover the possession of land, founded upon the legal title held by the plaintiff, the defendant may allege and prove, as a defense, that he is equitably the owner of the premises and entitled to a conveyance thereof.” Tins case was approved and followed in Phillips v. Gorham (17 N. Y., 270). The latter case involved the validity of a deed which is alleged to have been made while the grantor “was of unsound mind, imbecile, and'wholly incompetent to bind himself by a civil contract.” * * * And at the close of the opinion in that case it was said: “ If the defendant was entitled to any restitution, he should have presented his claim at the trial and it would then have been, as we must presume, properly disposed of.”

In Carpenter v. Ottley (2 Lans., 451), the cases of Crary v. Goodman and Phillips v. Gorham (supra), were referred to with approval, and the court observed : “A recovery of property, or the value thereof by the plaintiff who has the mere legal title, will not be allowed against a defendant who has the equitable title to such property, and who might, in an action against the plaintiff, to compel a specific performance, compel the latter to convey or transfer such legal title to the defendant. The defendant must, of course, set up his defense in such a case by way of answer, and establish it by his evidence.” In the case in hand the defendant-set up sufficiently the facts in his answer, and he set up a performance on his part, and a delivery of the consideration mentioned in the contract; and surely, if he was not entitled to have the deed remain, he was either entitled to have a decree for a specific performance of the contract, or a return of the consideration paid for the land in the' event the contract was invalid, there being no allegation that the contract was fraudulently obtained. The defendant had made some improvements upon the property, and there was some evidence-tending to show that lie made the purchase in good faith, without knowledge of any infirmity in the mind of .Brown at the time the contract was entered into. In referring to the rule that a deed or contract of a lunatic is void, in Johnson v. Stone (35 Hun, 383), it was said in the opinion : “ This rule is subject to the qualification that where a sale is for the benefit of the lunatic or his estate, and is made in good faith without knowledge of his condition, and the party who has made it cannot be put statu quo, a court of equity will not invalidate the transaction.” If the contract of April, 1889, was valid, the defendant was entitled to ask the judgment of the court, as a court of equity, for such equitable relief as the evidence disclosed entitled him to, including a deed from the plaintiff. In that aspect of the case, as Taloott, J., said in Cramer v. Benton (4 Lans., 296), “ He is pro hao vice, in a court of equity, and must rely upon its principles to maintain his claims.” It seems the wife of the plaintiff, who is his committee, voluntarily executed the deed for the purpose of releasing her dower to the defendant; and if the defendant shall be found to be entitled to a specific performance of the contract, and shall receive from the plaintiff a deed, probably the defendant would receive the benefit of such release of dower if, however, the defendant is not able to make out a case for specific performance according to the principles of a court of equity, he may become entitled to an award of damages or a return of the property which he delivered under the contract of April, 1889. (Cuff v. Dorland, 55 Barb., 496.)

In New York Ice Company v. The Northwestern Insurance Company of Oswego (23 N. Y., 357), it was said: “ That it was erroneous to turn the plaintiff out of court on the mere ground that he had not entitled himself to the equitable relief demanded, if there was enough left of his case to entitle him to recover,” etc.

We think the facts stated in defendant’s answer, and the evidence presented upon the trial, were sufficient to call upon the coip’t to exercise its equitable jurisdiction in considering what relief, if any, the defendant was entitled to, either by way of defense or affirmative relief. The defendant has averred in his answer that he “ entered into the possession of said premises, and made improvements thereon ; that there has been no offer to restore to this defendant the consideration so paid by him as aforesaid, or compensate him for the improvements so made by him on said premises as aforesaid.”

We think there should be a new trial, and the judgment and order is reversed and a new trial ordered, with costs to abide the event.

Martin and Merwin, JJ., concurred in result.

Judgment and order reversed and a new trial ordered, with costs to abide the event.


text:
    SAMUEL W. CASS, Respondent, v. MARCUS M. CASS, Individually, and MARCUS M. CASS, as Trustee of SAMUEL W. CASS, Appellant, Impleaded with Another.

      Jurisdiction — equity action — an adequate remedy at law, if it exists, must be alleged, — the Supreme and Bwn'ogate’s Courts hume concurrent jurisdiction over trustees, executors and administrators.

    Tiie distinction between actions at law and suits in equity has been abolished, and where, in an equity action, the defendant desires to insist that au adequate remedy exists at law he must set it up in his answer.
    The Supreme Court and the Surrogate’s Court have concurrent jurisdiction to call to account, at the instance of any one interested in the fund, a trustee, executor or administrator, and to pass upon his acts.

      Semble, that the pendency of proceedings in one court would be a bar to any action or proceeding in the other.
    Appeal by tbe defendant Marcus M. Cass, as trustee of Samuel W. Cass, and individually, from an order, entered in the cleric’s office of Schuyler county on the 30th day of June, 1891, referring this action to a referee to hear, try and determine the same.
    The order appealed from recites that it was made “upon the affidavits of Orlando Hurd, C. H. Everts, Frances Cass aud George I) Norman, and upon the proceedings heretofore bad in this action, including tbe pleadings and orders heretofore made, and upon affidavits of Marcus M. Gass and Marcus M. Cass, Jr.” The complaint alleges that Cynthia N. Freer, of the town of JDix, nowin the county of Schuyler, died on the 1st of October, 1853, leaving her last will and testament and codicil, which were duly admitted to probate; and that by said will, a legacy of both real and personal property was bequeathed to the plaintiff; the will and codicil are annexed and made a part of the complaint; and the complaint alleges that the property so bequeathed and devised, some twenty thousand dollars, went into the hands of and “ was received by the said Marcus M. Cass and Orlando Hurd, as trustees for this plaintiff under said will.” It also alleges “ that the said Marcus M. Cass and Orlando Hurd have never rendered, made or filed an account of their proceedings as such trustees to or with any court having jurisdiction thereof.” That on the 21th of February, 1891, the plaintiff caused a petition to be filed in the surrogate’s office of Schuyler county, and a citation to be issued tbereon requiring the said Cass and Hurd to account in said Surrogate’s Court, as trustees of this plaintiff, to the end that the amount justly due from them to this plaintiff might be ascertained. That Cass and Hurd appeared on the return of the citation in the Surrogate’s Court, and that an answer to the petition was filed. That “ on or about the 13th day of April, 1877, the said Orlando Hurd passed over securities belonging to the trust fund so created for this plaintiff to the said Cass, amounting to the sum of $14,959.88, with accumulated interest, which were received by him as such trustee, since which time he has wrongfully used, invested and appropriated a large portion thereof, so that the same, the pretended securities or obligations taken therefor, are comparatively worthless and of little or no value.” That the trustees have given no security for the trust fund, and that since the probate of the will they have become insolvent. “ That the said trustees now have money, or should have, to the amount of upwards of $20,000, to which this plaintiff is entitled, and which they have been repeatedly called upon to pay over, all of which they have neglected and refused to do.”
    In the prayer to the complaint the plaintiff asks “ that they and each of them be required to render their and his account as such trustees, or trustee as aforesaid, that the same may be judicially settled and determined, and that any moneys found due to the plaintiff may be paid over to him. That the defendants and each of them be required to give security for any funds that may remain in their hands, or that they and each of them may be removed as such trustees, and some suitable and proper person or persons may be appointed in their place, to whom such trust fund may be paid over, or for such other or further relief as may be proper in the premises.”
    The answer of Marcus M. Cass denies many of the allegations in the complaint, and it alleges that, “ by and with the consent of the plaintiff in this action certain securities, or alleged securities, amounting to $14,759.88, were transferred to this defendant by the said Orlando Hurd, as such trustee, which was' the only sum received by this defendant; and the said securities, and the amount thereof, were so received by him at the request of the said plaintiff, and he thereupon approved of the same as the only amount of said trust fund, and approved of the character thereof as being the only securities in which lie was the beneficiary under said trust.” * * * Tlie said defendant alleges that he has faithfully discharged his duty, and has, “ from time to time, paid over to him all sums connected therewith, in pursuance of the directions of said will of Oynthia Ann Freer, deceased, whereby the same was created; ” and he further “ avers that he has paid the said plaintiff from time to time, and at different times, between the time that he accepted said trust in 1877 and before the commencement of this. suit, a large sum of money, and more than sufficient to pay to him the income received by him on account of such trust, and directed to be paid to said plaintiff; and has, in addition thereto, paid him an additional sum to the amount of more than seven hundred dollars, including expenses, commission and other just charges, upon said fund, for which he has from time to time rendered a statement to the plaintiff, and at all times, when requested so .to do, he has rendered and delivered to him such statements, all of which were approved, when so rendered, by the plaintiff, as correct and proper.” That “he is advised and believes the Surrogate’s Court of the proper county has full and ample power and authority to hear and determine said accounting, and that this court ought not to have or to entertain jurisdiction thereof or otherwise entertain this suit; ” and he also sets up the statute of limitations. In the affidavit of Frances Cass, used upon the motion, it is stated “that in February last said Everts did institute proceedings in this matter before the Surrogate of Schuyler county, in which said defendant apjieared and filed his verified answer and such proceedings were discontinued, * * * after which, .and on the seventeenth day of April, this action was commenced.”
    In an affidavit used upon the motion to refer, Mr. Everts, the attorney for the plaintiff, states • “ That, to deponent’s personal knowledge, the trial of this action will involve the examination of a long account, embracing over five hundred different items, including the computation of interest on over seventy-five different items and rests extending over a period of thirty years.”
    In the affidavit of Frances Cass it is stated that the defendant has “ over $600, the income of said trust fund, which he has been directed by the plaintiff to pay over to this deponent, and which he has refused to do.”
    In the affidavit of Marcus M. Cass, Jr., one of the attorneys for the appellant, it is stated, “ That this suit involves, - as deponent verily believes, important and. intricate questions of law which will necessarily have to be determined upon the trial of this cause; ” .and he also adds, “ That there is a further legal question which will arise therein concerning the solvency of the defendant Cass and his fitness to continue as a trustee therein.”

      John J. Van Allen and Marcus M. Cass, Jr., ,for the appellant.

      Charles II. Everts, for the respondent.
   Hardin, P. J.:

Appellant in his argument before us urges certain objections to the order to show cause, which is in the nature of a notice of motion, and asks us to reverse the order on alleged technicalities and irregularities in the nature of preliminary objections, but upon turning to the order we are unable to discover that such objections were taken at the Special Term; it is too late for the appellant to raise them on this appeal in the first instance.

(2.) The appellant insists that the complaint does not state facts sufficient to constitute a cause of action, and insists that it must appear on the face of the complaint that the party coming into a court of equity has not an adequate remedy at law.

(a.) In answer to such position taken by the appellant it may be observed that section 3339 of the Code of Civil Procedure provides as follows: “ There is only one form of civil action. The distinction between actions at law and suits in equity and the forms of those actions and suits have been abolished.”

( b.) It has lately been held by the Court of Appeals that: The defendant, in an equity action, in order to insist that an adequate remedy exists at law, must set it up in his answer.” (Ostrander v. Weber, 114 N. Y., 96.)

The judge at Special Term correctly observed that no defense of that character is pleaded.

{c.) It is insisted in behalf of the appellant “ That the Surrogate’s Court has complete and adequate powerto administer the machinery necessary to force an accounting of the trustee and to settle the same without invoking the aid of a court of equity; ” and the learned counsel for the appellant refers to section 2802 et sea. of the Code of Civil Procedure. It may be conceded that the proper surrogate would have jurisdiction of the trustee and that proceedings might be initiated in the Surrogate’s Court to compel him to account and perform his duties as trustee, and that such proceedings might be instituted at the instance of any one interested in the fund in the hands of the trustee, but we do not understand that those sections of the Code or any other legislation has deprived the Supreme Court of its jurisdiction over trustees and trust funds. In Wager v. Wager (89 N. Y., 168), it was said: “ "Where complete relief can be obtained in the Surrogate’s Court, a court of equity may, m its discretion, decline, on that ground, to entertain an action for an accounting or other relief against executors, but the proposition that the court has no jurisdiction in such a case cannot be sustained.” When this action was commenced no proceedings before the Surrogate were pending, instituted by the plaintiff or by the defendant, for an accounting or a judicial settlement of the accounts of the trustee.

In Rogers v. King (8 Paige, 210), it was held that the jurisdiction of this court and of the Surrogate, over an executor or administrator to call him to account, were concurrent; and it was further held, in that case, that where a bill was filed in chancery against an executor or administrator for an accounting that in a subsequent proceeding brought before the Surrogate, the pendency of the suit in chancery might be set up before the Surrogate in the nature of a plea in abatement, and will constitute a valid objection to the proceedings therein.

The doctrine of that case was referred to and followed in Groshon v. Lyon (16 Barb., 467), and, after stating the rule as laid down in Rogers v. King {supra), the court observed: “ The converse of the rule thus laid down would also hold. If there were a decree before the surrogate to account, it would be a bar to any proceeding for an account in the Court of Chancery, in all cases where full relief could be had before the Surrogate.”

In Wood v. Brown (34 N. Y., 337), the jurisdiction of this court over trustees and executors was a subject of inquiry, and, after referring to the statute conferring jurisdiction upon surrogates, it was observed by Judge Morgan, who delivered the opinion of the court, as follows: “ It does not, however, follow that a court of equity may not exercise the same or concurrent jurisdiction ; ” and later on in the opinion he further adds: “ But, then, it must be conceded that courts of equity, as a general rule, have a concurrent, jurisdiction with Surrogates’ Courts in matters of accounting, as against executors and administrators. (Rogers v. King, 8 Paige, 240.) These courts may furnish a more comprehensive remedy,, for they may proceed by injunction to restrain the further proceedings of executors until an account can be taken, if there is danger of injury to the estate. The case at bar was a proper one to call on the defendant to render an account of his proceedings.”'

In Christy v. Libby, 5 Abb. [N. S.], 392), an action was brought to compel the defendant to account to the plaintiff for the assets he had received, and, in the course of the opinion, it was said : “ The provisions of the Revised Statutes conferring the jurisdiction upon surrogates was to provide an inexpensive and summary mode of bringing executors, etc., to account, but did not take away the power theretofore exercised by courts of equity to afford this species of relief. It still exercises a concurrent and, in some cases, an exclusive jurisdiction. (Rogers v. King, 8 Paige, 210; Will, on Eq. Jur., 560.) ”

In Christy, as Administratrix, v. Libby (35 How. Pr., 119) it was held, viz.: Courts of equity have jurisdiction to call upon executors and administrators to account. Such power was frequently . exercised by the late Court of Chancery, although the surrogate had jurisdiction over such proceedings. The Revised Statutes do not confer on the surrogate exclusive jurisdiction over proceedings to compel executors, administrators or collectors to account.” In the course of the opinion in that case, Van Vorst, J., said: Courts of equity take cognizance of the conduct of executors, administrators and other trustees. (3 Blackstone’s Com., 437; Willard’s Equity Jurisprudence, 88, 490.) ”

In Haddow v. Haddow (3 N. Y. Sup. Ct. Rep. [T. & C.], 777) it was held : “A court of equity has jurisdiction to compel an accounting to parties entitled to an estate from those who have it under their control, when the proper parties are in court.” This case was affirmed in the Court of Appeals (59 N. Y., 320), and in delivering-the opinion of the court, Rapallo, J., says nothing inconsistent with the doctrine of the cases to which we haim already referred.

Appellant’s counsel calls our attention to Seymour v. Seymour (4 Johns. Ch., 409). We have examined it and find nothing inconsistent with the doctrine of the cases already referred to ; in the case it was held that a surrogate has concurrent jurisdiction with this court to compel administrators to account and make distribution of the estate; ” and it was further held that, after adminisfcrators had been brought before the surrogate “ for an account and distribution of the intestate’s personal estate, this court will not, without some special and satisfactory reason, interfere with the proceedings of the surrogate, by granting an injunction and sustaining a bill for general relief.” We think the case does not aid thejargument of the apj>ellant.

(4.) The appellant contends that the reference ought not to have been ordered because the trial of the issue involves difficult questions of law; the affidavit on that subject is a general averment and does not conform to the requirements of the adjudged cases.

In Salisbury v. Scott (6 Johns., 329) it was said : “ Where a motion to refer a cause is repelled on the ground, that questions of law will arise on the examination of the cause, the party must state what the points of law are, so that the court may judge whether they are material or difficult, and will necessarily arise, and that we may be satisfied whether the referees be a proper tribunal for the trial of the cause ; otherwise by the general affidavit, all references may be prevented.” This case was referred to with approval by Judge Paighs in Dewey v. Field (13 How. Pr, 439).

(5.) The Special Term has found, in effect, that the trial of the issues will require the examination of a long account. We think, upon a full consideration of all the matters alleged in the pleadings and in the affidavits before the Special Term, the finding was war-wanted, and we are not disposed to interfere with the same.

In Welsh v. Darragh (52 N. Y., 592), in the course of the opinion -delivered, Chief Justice Church says : “ This court will not review the finding below, that the action involves the examination of a long account if the facts will warrant such a finding. If the facts show that the examination of a long account may be necessary, and the court below has decided to refer the action, this court will not interferí. It is only when it is palpable that no such account can be involved that an appeal will lie to this court. (Kain v. Delano, 11 Abb. [N. S.], 29.)”

In one of the affidavits used upon the motion it was stated “ this action will involve the examination of along account embracing over five hundred different items, including the computation of interest on over seventy-five different items and rests extending over a period of thirty years.”

We think the conclusion reached at the Special Term should be sustained and Ihe order affirmed, with ten dollars costs and disbursements. «

Williams and Merwin, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.


author: Merwin, J.:

text:
    ELIZA A. MARTIN, Respondent, v. THE EQUITABLE ACCIDENT ASSOCIATION, of Binghamton, Appellant.

      Accident insurance —■ when an injury is the sole and proximate cause of death — question for theju/ry— waiter of a condition requiring written notice of an injury,

    A certificate of membership in an assessment accident insurance association provided for the payment of an amount named therein in case of the death of the member from bodily injuries, effected through external, violent and accidental means, within the intent and meaning of the contract and of the conditions annexed thereto. One of said conditions provided that the benefits of the certificate should not extend to any bodily injury happening directly or indirectly in consequence of any disease, nor to any death or disability caused wholly or in part by bodily infirmities or disease, nor to any case except where the injury was the proximate and sole cause of the disability or death.
    Upon the trial of an action brought to recover the amount named in such certificate, it appeared that, on April twenty-seventh, the deceased received an injury to a finger upon his right hand, that blood poisoning ensued; that this caused his death; that, on April eighth, he had received an injury to the thumb of his left hand, which inflamed and suppurated, and that it was possible that poisonous matter from the thumb might, at or 'near the time of the accident to the finger, have been communicated to it and caused such blood poisoning.

      Held, that it was a question for the jury to determine whether the injury to the finger was within the terms of the policy, and was the proximate and sole cause of death.
    That where a corporation, after verbal notice of an injury to the insured, sent one of its medical directors to examine the condition of the wound, it must be deemed to have waived a condition of the certificate requiring written notice to it of such injury.

      Appeal by tlie defendant, tbe Equitable Accident Association, of Binghamton, from a judgment of'the Supreme Court, entered in the office of the clerk of the county of Broome on the 1st day of June, 1891, upon a verdict for the plaintiff for $5,512.50, after a trial at tlie Broome Circuit before the court and a jury, with notice of an intention to bring up for review upon such apqieal an order denying the defendant’s motion for a new trial, madS upon the minutes of the court.
    The evidence tended to show that the secretary of the defendant resided in the same city with the deceased ; that verbal notice of the injury was communicated to said secretary five days after the injury was received; that he sent one Orton, a medical director of the company, to call upon the injured man; that said Orton examined the wound and reported to said secretary, and that subsequently, in company with Orton, two other physicians examined the wound. A condition of the policy gave the defendant a right to make such examination in case of an injury.

      David Murray, for the aqipellant.
    Ga/rver, Deyo & Jenkins, for the respondent.
   Merwin, J.:

This action is brought upon a certificate of membership, issued by the defendant on the 23d of November, 1883, to "William A. Martin, the husband of the plaintiff, agreeing to pay to the plaintiff the principal sum, not exceeding $5,000, realized upon an assessment in accordance with the by-laws of the defendant, within sixty days after due and satisfactory proof that the member, at any time during the continuance of the membership, shall have sustained bodily injuries, effected through external, violent and accidental means within the intent and meaning of the contract and thé conditions thereunto annexed, and such injuries alone shall have occasioned death within ninety days from tlie happening thereof. One of the conditions referred to was that the benefits under the certificate should not extend to any bodily injury happening directly or indirectly in consequence of any disease, nor to any death or disability which may have been caused wholly or in part by bodily infirmities or disease existing prior or subsequent to the date of the certificate, nor to any case except where the injury is the proximate and sole cause of the disability or death. Another of the conditions was that immediate notice of the injury should be given to the defendant in writing, and that failure to give such notice within five days from the happening of the accident should invalidate all claim under the certificate.

It was alleged in the complaint that on the 27th of April, 1889, William A. Martin accidentally cut or wounded a finger on his right hand, and that some substance was, at or about the same time either from the instrument that made the cut or wound, or from some other source or manner unknown to plaintiff, accidentally communicated to the cut or wound and blood poisoning ensued, and the assured died from said injury or injuries on the 10th of May, 1889, and that said death was occasioned alone by said accidental injury or injuries. The defendant in its answer claimed that the death was due to disease, and that written notice of the injury had not been given as required by the conditions of the certificate.

At the trial, evidence was given by the plaintiff tending to substantiate the allegations of the complaint, and that the written notice of the injury had been waived by the defendant. It also appeared that on the 8th of April, 1889, Martin had accidentally received an injury upon the thumb of the left hand, had badly bruised it; that the thumb became quite swollen, was lanced about ten days or two weeks after the injury; that after it was lanced it continued to suppurate up to the time of the second injury, and that virus from this sore upon the thumb may have been in some way communicated to .the second injury at or about the time of its occurrence, and produced the blood poisoning. How the second injury happened is not shown by direct evidence. A piece of flesh about the size of a pea was taken from the finger, and there is evidence leading toward the inference that this was torn out in the use by Mr. Martin of an umbrella that he had been accustomed to use during the existence ■of the sore on his other hand.

At the close of the evidence the court held, as matter of law, that the plaintiff could recover, though the death was caused by blood poisoning caused by the pus from the first wound, and that the only ■question for submission to the jury was in relation to the waiver of the condition of written notice. Upon the latter question, as the defendant did not ask to go to the jury upon it, the court also held upon that in favor of the plaintiff, and directed a verdict for the amount claimed.

The appellant claims (1) that the assured came'to his death from a disease known as “ blood poisoning,” contracted by or through contact of the sore on the right hand with diseased matter from the sore on the thumb of the left hand, and that it was error to direct a verdict for the plaintiff; (2) that there is no evidence from which waiver of notice can be held as matter of law or at all; (3) that the-court erred in admitting evidence of the amount of an assessment.

.Upon the last proposition the defendant claims that the. allegation in the complaint was not broad enough to admit the evidence. The allegation was “ that an assessment under the articles of incorporation and by-laws of said defendant, at the time of the death of said assured, and for a long time thereafter, far exceeded the said sum of $5,000.” This evidently referred to an assessment such as the. certificate or policy in question called for, and, under it, it was competent to show what an assessment under the provisions of the policy would have amorinted to.

The rule upon the subject of waiver has been quite definitely settled by the Court of Appeals. The failure to give written notice would result in a forfeiture. In regard to such a case, it is said in Titus v. Glens Falls Insurance Company (81 N. Y., 419), that “it may be asserted broadly that if, in any negotiations or transactions, with the insured, after knowledge of the forfeiture,'it (the company) recognizes the continued validity of the policy or does acts based thereon, or requires the insured by virtue thereof to do some act or incur some trouble or expense, the forfeiture is, as matter of law, waived; and it is now settled in this court, after some difference of opinion, that such a waiver need not be based upon any new agreement or an estoppel.” This principle was followed in Roby v. American Central Insurance Company (120 N. Y., 510). There was evidence in the present case sufficient to warrant a finding of waiver under the rule as above laid down. Yery likely, upon this subject, the defendant would have had the right to go to the jury had it been requested, but as no such request was made when the attention of counsel was called to it, the defendant cannot complain that the court decided it. Upon the other issues, did the court err in ordering a verdict for the plaintiff ?

The evidence showed that the death was produced by blood poisoning, and that this was occasioned by the inoculation into the-wound of some poisonous substance at or very soon after the wound was made. If the inoculation occurred at the time the wound was made so that it was, in fact, a part of the accident, I see no good reason why the death might not be attributed to the accident as the sole and proximate cause although blood poisoning ensued. The latter would be produced by the accident, and within the distinction recognized by Judge Peckham in Bacon v. United States Mutual Aid Association (123 N. Y., 308).

Whether, as a result from the first, injury, the plaintiff might not have a cause of action therefor is not involved here, as no such cause of action is alleged in the complaint.

In Martin v. Manufacturers’ Accident Indemnity Company (15 N. Y., Supp., 309), which was an action brought by the same plaintiff, as in the present case, upon a similar certificate issued by another company, and having reference to the same accident and death, it ivas held by this court that the question whether the death ensued from injuries covered by the provisions of the policy was for the jury to determine. The evidence in that case on the subject was substantially as here. Following that case, it became here a question of fact for the jury to determine whether the injury complained of was within the terms of the policy, and was the proximate and sole cause of the death. This involved the question whether the death was caused wholly or in part by any disease within the meaning of the policy.

We think the case should have been submitted to the jury and that a new trial should be granted.

Hardin, P. J., and Martin, J., concurred.

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


author: JVLerwin, J.:

text:
    MARCUS M. CASS, Appellant, v. JAMES SHEWMAN, Respondent.

      Surety — agreement by a surety upon a lease, to pay the rent, etc. — no demand upon the lessee need be made before action — trial of an issue of law, no eoeceptions need be filed to the deaision.

    One Oass leased a farm to Jennie D. Sliewman by an instrument, reserving rent, and further providing that the lessee should carry on the farm in a good and farmer-like manner, the performance of which lease was guaranteed in writing by James Shewman, who agreed to fulfill all its terms and conditions not fulfilled by the lessee.
    In an action brought upon said guaranty, in which the complainant alleged nonpayment of the rent and damages resulting to the property from a failure to care for it in a farmer-like manner, the defendant James Shewman answered, alleging, among other things, that no demand had been made upon the lessee, before the commencement of the action, to pay the rent, or for the performance of the conditions in the lease alleged to have been violated, or for damages for the alleged injuries to the property, and that no legal proceedings had been prosecuted against' her.
    A demurrer having been interposed to this count of the answer:

      Held, that the demurrer was well taken.
    That no demand was necessary as against the lessee, her agreement being broken when she failed to pay and violated the conditions of the lease.
    That the agreement of James Shewman was absolute, and was, in effect, an agreement to pay said, rent, and to perform said conditions if the lessee did not.
    The rule requiring exceptions to be filed to the decision of the court applies only to trials of issues of fact, and has no application to a decision made upon the trial of an issue of law.
    Appeal by the plaintiff Marcus M. Cass from a judgment of the Supreme Court 'dismissing the plaintiff’s complaint, entered in the office of the clerk of Schuyler county on the 6th day of July, 1891, upon the decision made upon a demurrer interposed by the plaintiff to parts of the defendant’s answer; also from an order, entered in said clerk’s office on the 2d day of July, 1891, ordering that the demurrer of the plaintiff to the fifth defense in the defendant’s answer be overruled.
    On the 3d of April, 1888, the plaintiff and one Jennie D. Shew-man entered into a written agreement, by which the plaintiff leased to said Shewman his farm of 110 acres for the term of three years from April 1, 1888, at the annual rent of $125, payable on the first of March of each year. It was, among other things, provided that Shewman, the party of the second part, should have “ fire-wood and privilege to cut and use posts for fencing on said farm, hut shall not cut standing timber until down timber is used up,” and the party of the second party agreed to carry on the farm in a good and farmer-like manner.
    Upon the same occasion, and in connection with said lease, the defendant executed and delivered to plaintiff an instrument, of which the following is a copy :
    “ For a valuable consideration to me paid by M. M. Cass, the receipt whereof is hereby acknowledged, I hereby agree to become and do become security for the fulfillment of the above lease by the party of the second part, hereby agreeing to fulfill all the terms and conditions of said lease not fulfilled by said party of second part.
    “Witness my hand this 3d day of April, 1888.
    “JAMES SHEWMAN.”
    In the complaint the lease and the guaranty of defendant are set ■out, and it is alleged that the lessee went into possession, and that the year’s rent of $125 that became due March 1,1891, has not been paid. It is also alleged that the lessee has not carried on the farm in agood and farmer-like manner; has committed waste; has torn down and injured fences; has injured the buildings, and has cut down and ap2>ropriated many standing trees contrary to the provisions of the agreement, thereby damaging the plaintiff to the amount of $300, which, by the terms of the agreement, the lessee is liable to pay; that in these respects the lessee has made default and has failed to fulfill the ■agreement. Judgment is demanded against the defendant for $425.
    In the fifth Count or defense in the answer, it is alleged by the defendant that no demand was made by plaintiff, before the commencement of this action, of said lessee for the payment of said rent, •or for the performance on her part of the conditions and provisions in said lease contained, alleged in the complaint to have been broken and violated by her, or for com23ensation in damages for such alleged breach, or for the injury, as alleged, to the real property; that plaintiff had taken no steps and resorted to no legal remedy against the lessee to recover the said rent, and for damages for a breach of performance of the conditions of the agreement, and had not exhausted his remedies, legal or otherwise, against the lessee.
    In the seventh count or defense the defendant alleged that the lease or agreement set forth in the complaint was void for the reason that it was not sealed, acknowledged or witnessed.
    The plaintiff demurred to the fifth and seventh defenses in the answer on the ground that each of said answers is insufficient in law upon the face thereof, and neither contains sufficient facts or allegations to constitute a defense.
    The court, by an order, entered July 1, 1891, sustained the demurrer to the seventh defense, giving the defendant leave to amend on payment of costs of the demurrer, but overruled the demurrer to the fifth defense and directed an interlocutory judgment to that effect.
    The court also granted an order, which was entered July 2,1891, directing that the demurrer to the fifth count be overruled, and that “the defendant may enter judgment herein dismissing said complaint, with costs, which judgment shall stand upon the record until the trial of the issue joined in this action; and in case said action shall be determined in favor of the defendant, said judgment, together with judgment for further costs, shall stand as the final judgment in this action, otherwise to be of no force and effect.” This order and the judgment entered in pursuance thereof on the Pith of July, 1891, are appealed from.

      M. M. Gass, Jr., for the appellant.

      Góle (S¡ JBolyon, for the respondent.
   JVLerwin, J.:

No exceptions to the decision of the court were filed by the appellant, and the .respondent, therefore, claims that the appellant is not in a position to question the correctness of the decision. The cases cited to sustain this view of the practice relate only to trials of issues of fact. By section 992 of the Code of Civil Procedure, it is provided that “ an exception may be taken to the ruling of the court or of a referee, upon a question of law arising upon the trial of an issue of fact.” The manner in which such exceptions shall be. taken is regulated by sections 994 and 995. We áre referred to no provision of the Code, or to any authority, which requires exceptions to be taken to the decision of the court on the trial of an issue of law. Under the former Code, the practice, as understood, did not require exceptions in such a case. (3 Wait’s Pr., 232.) We think none were necessary.

Ujron the merits of the demurrer, the claim of the respondent, as indicated by his points, is that he is not liable until a demand is made upon the principal debtor, and that “ it must be shown that she refused to fulfill the covenants, and the surety must have previous notice, and a demand must also be made on him so that he may have knowledge of the breach and an opportunity to fulfill himself.” To sustain this view the cases of McMurray v. Noyes (72 N. Y., 523); Toles v. Adee (91 id., 562); Bank of New York v. Livingston (2 Johns. Cases, 409); Mechanics Fire Insurance Company v. Ogden (1 Wend., 137), are cited.

In the McMurray case, the defendant, upon an assignment of a bond and mortgage, covenanted that if, in case of foreclosure and sale of the mortgaged premises, there should arise a deficiency, he would pay the same on demand. In an action on this guaranty, it was held that the foreclosure and sale were conditions precedent to be performed, with due diligence, in order to establish the liability of the guarantor. Toles v. Adee was an action upon an undertaking, given upon the discharge of a defendant from an order of arrest, and conditioned that the party discharged would at all times hold himself amenable to process issued to enforce the judgment. It was held that the entry of judgment and issuing of process against the principal debtor were conditions precedent to the liability of the surety, and that a neglect to perform such conditions, with due diligence, discharged the surety. In Bank v. Livingston, there was an absolute guaranty of repayment of certain moneys advanced to a committee. The only question raised was whether the committee should have been first sued, and it was held that this was not necessary. In Mechanics Fire Insurance Company v. Ogden, the defendant had assigned to plaintiff certain contracts, and covenanted that the sum set opposite to each contract, in a statement annexed, was then justly due thereon, and that each and every sum should be well and truly paid to the plaintiffs, with the interest on eacli respectively.” It was held that plaintiffs could not call on defendant for payment without first making demand of those who signed the contracts, but that it was not necessary to bring suit against them.

The first two cases are clearly distinguishable from the present. In those something was to be done by the creditor before the liability of the surety was determined. Here the liability attached and was determined the moment the lessee failed to perform his duty, and the liability of the surety was as extensive as that of the lessee. (Pothier on Obligations, 404.)

The case in 1 Wendell sustains somewhat the position of defendant, but other cases are in a different direction. In Allen v. Rightmere (20 Johns., 365), there was a guaranty by the defendant of the payment of a note, and it was held not to be necessary to make a demand of the maker before suing the defendant, it being said that the undertaking of the defendant was that the maker should pay the note when due or that the defendant would pay it himself. The doctrine of this case was followed and established by the Court of Appeals in Brown v. Curtiss (2 N. Y., 225).

In Mann v. Eckford's Executors (15 Wend., 502), the obligation sued on was a bond of defendant’s testator, conditioned that one Gibbons, “ should punctually satisfy and pay to the Mtn& Insurance Company ” the amount of a certain bond and mortgage, executed "by Gibbons, and upon which the company had advanced the money, with interest as the same should become due. It was held not to be necessary for the plaintiff to prove a demand upon Gibbons for payment of the money and notice to the obligor or to defendants, it being said that if a person make an unconditional engagement for the act of a third person, the contract will be broken if that person fails to do the act. In Douglass v. Howland (24 Wend., 35), there was an agreement between plaintiff and one Bingham, whereby, .•among other things, Bingham agreed to pay the plaintiff such sum •as should be found due upon an accounting provided for in the agreement. Underneath the agreement the defendant executed an instrument by which he covenanted that Bingham should “ vrell and faithfully perform on.his part the above agreement.” It was held that defendant was not entitled to notice before action of Bingham’s •default. Among other cases there cited was the case of Brooh bank v. Taylor (Cro. Jac., 685), where the promise was that the defendant would pay the plaintiff the rent due from another, if the latter did not pay it, and it was held that the defendant must notice the non-payment at his peril. In the East River Bank v. Rogers (7 Bos., 493), the plaintiff made a loan to one Chase, payable in sixty days, and the defendant promised that if Chase failed to repay the amount with interest within the sixty days, “then, and in such case, the defendant will become answerable to the plaintiffs for such repayment, after thirty days notice of such default.” It was held that a demand of the principal need not be made before suit against the defendant. In Clark v. Burdett (2 Hall, 217), there was a guaranty by defendant of payment of bills of merchandise, purchased or to he purchased, and it was held that a demand of the purchaser and notice to defendant were not necessary as conditions precedent to plaintiff’s right of action. In Turnure v. Hohenthal (4 Jones & Spencer, 79), where a surety to a lease bound himself that in case default should at any time be made by his principal in payment of rent and in the performance of the conditions of the lease to be by him performed, he would pay the rent in arrear and all damages in consequence of the non-performance of the covenants, without requiring any notice of such default, it was held that no demand was necessary to be made of the tenant by the landlord for the rent before proceeding against the surety, and that the landlord was under no obligation to attempt to collect tire rent or enforce the covenants against the tenant. A like view was taken in McKensie v. Farrell (4 Bos., 204), and in Ducker v. Rapp (9 J. & S., 235). In Cordier v. Thompson (8 Daly, 172), one Ferrero executed an instrument by which she agreed to return to plaintiff’s intestate a certain amount of money at a certain time, and the obligation of the defendant was in the following form: “ I guarantee the above obligation.” This was held to be a guaranty of payment and' that neither demand on the principal or notice to the guarantor of default was a prerequisite to an action on the guaranty. Voltz v. Harris (40 Ill., 155), was an action upon a guaranty of a lease by which the guarantor became “ security ” that the lessee would do and perform all the covenants contained in the léase, and promised to pay to the lessors all rents and damages the lessor’s might sustain by reason of the non-compliance or non-fulfillment of the stipulations of the lease by the lessee. It was held that the liability of the guarantor was primary and that he was not entitled to notice of the non-performance •of tiie stipulations. In Ashton v. Bayard (71 Penn. St., 139), the obligation against the surety was : “ I hereby become the security of .S. Coulter for the fulfillment of the -within obligation.” This referred to a due bill given by Coulter for certain shares of stock. This was held to be an original undertaking by the surety, and a recovery thereon could be had without proving diligence to pursue Coulter. •(See, also, Brandt on Suretyship, §§ 86, 172).

In the present case, as against the lessee, no demand was necessary. (Jackson v. Binns, 10 Weekly Dig., 105 ; Mc Murphy v. Minot, 4 N. H., 251.) His agreement was broken when he failed ■to pay, and when he violated the conditions of the lease. The defendant agreed to fulfill all the terms and conditions not fulfilled by the tenant.. This was, in effect, an agreement to pay if the lessee did not. When the plaintiff shows a breach by the lessee .and non-payment or non-fulfillment, then he shows all that, by the terms of the contract, he is required ■ to show in order to make the defendant liable. The agreement of defendant was not that the lessee would pay on demand or upon suit brought, but it was absolute that he would fulfill if the lessee did not. This, in substance, was a guaranty of payment, and not of collection. The defendant, in his agreement, required no demand or notice or exhaustion of remedies against the tenant. No duty was imposed on the lessor in the first instance to take any steps against the debtor, and that is said to be the test in order to determine whether a guaranty of payment •or collection exists. (Toles v. Adee, supra, 573.)

The contracts of sureties are to be construed like other contracts, so as to give effect to the intention of the parties. (People v. Backus, 117 N. Y., 201.) It is hardly to be assumed here, in the absence of' an express stipulation to that effect, that the intention of the parties was that the lessor should pursue the lessee to the end of an execution before calling upon the surety. . In fact, that does not now seem to be claimed by the respondent’s counsel, but he relies on the question of demand and notice. This the defendant did not require by his agreement, and he was not entitled to it any more than in case of an absolute guaranty of payment. This view is, I think, in accordance with the current of authority, as illustrated by the cases above referred to.

It follows that- the demurrer should have been sustained.

Hardin, P. J., and Martin, J., concurred.

Judgment and order reversed, with costs of appeal, and interlocutory judgment ordered for the plaintiff upon the demurrer, with costs, with leave to the defendant to answer in twenty days upon the payment of the costs of the demurrer and of the appeal.


text:
    THE CITY OF BINGHAMTON, Respondent, v. THE BINGHAMTON AND PORT DICKINSON RAILWAY COMPANY, Appellant.

      Street railway — repair of streets does not include paving — presumptive evidence that paving is necessa/i'y.

    Iu an action brought by a city to recover írom a street railway company the expense of paving' between its tracks, it appeared that the city, by its charter (chap. 291, Laws of 1867), was given the general powers of commissioners of highways; that the company was incorporated under chapter 501, Laws of 1868, and that a condition of its franchise was that it should “keep the surface of the said streets and highways within the rails, and for one foot outside thereof, and to the extent of the ties, in good and proper order and repair.” The street iu question had never been paved. The common council duly ordered and determined that it be paved with asphalt, haying a concrete foundation. The company refused to perform its part of this work. The city did the work and assessed the expense upon the company.
    Upon the trial of the action no direct proof was made by the city that at the time it ordered the asphalt pavement the space in the street occupied by the company was not in good repair, or that the pavement was necessary to keep the street in such condition.

      'Held, that the action could not be maintained.
    That the obligation of the company, under its franchise to keep the surface in good repair, did not include repaving.
    That the resolution of the common council directing an asphalt pavement to be laid was not presumptive evidence that such pavement was necessary and proper.
    That as the rights of the company had been fixed by the legislature the city had no right to increase the burden imposed thereby, nor could it construe the meaning of said act to its own advantage.

      The common council oí the city adopted an ordinance in relation to street railroads, which, in substance, provided that such railroad companies should, under the direction of, and as required by the common council, “improve with such suitable material as the common council shall direct, and in a proper manner, between the rails, and shall keep the surface of the street inside of the rails in good repair.”

      Jleld, that such ordinance did not affect the railway company.
    The work in question was done under a provision of the city charter, as revised by chapter 214, Laws of 1888. In this revision there was no provision charging any expense for city paving- upon the railway company, and there was an express provision that all repairs to the streets should be paid for by the city.

      Held, that the revision did not affect the franchise granted to the company in 1868, and that it was liable only to keep the street in good repair.
    Appeal by the defendant, tlie Binghamton and Port Dickinson Railway Company, from a judgment, entered in the office of the clerk of the county of Broome on the 23d day of March, 1891, upon the report of a referee, in favor of the plaintiff for $5,181.12 and costs, with notice of an intention to bring up for review upon such appeal the decision of the said referee.

      Edmund O' Connor, for the appellant.

      A. JD. Wales and Charles F. O'Brien, for the respondent.
   Merwin, J.:

This action is brought to recover the expense of paving between the defendant’s railway tracks on Chenango street, in the city of Binghamton, from the Erie Railway northerly to the north line of the city.

The plaintiff was incorporated as a city by chapter 291 of the Laws of 1867. By this act the mayor and common council were made commissioners of highways, and given the general powers of commissioners in towns. They were also given the power to regulate, jiave, repair and improve the streets. It was, however, provided that before any paving should be ordered, it should be necessary that two-thirds of all the owners of real estate fronting upon the street to be paved, petition or consent that the same shall be done. The expense of paving was directed to be assessed upon the owners, in proportion to the number of feet frontage, except that when the street was paved for the first time two-thirds only of the expense should be assessed on the owners, and the remainder be paid from the highway fund, and “ such street or part of street shall, after-such first payment as aforesaid, be kept in repair at the expense of the city.”

The defendant was incorporated by chapter 501 of the Laws of 1863, passed May 1, 1868. By this act the defendant was authorized to construct and operate a railroad, with a double or single track, through and along certain streets and public roads of the city and town of Binghamton. One of the designated streets of the city was Chenango street. The mayor and common council of the city, and the proper authorities of the town, were “ authorized and directed to grant permission to the company herein named, or their assigns, to construct, maintain, operate and use said railroads in, upon, and along the several streets and highways herein mentioned.” It was further provided that the cars should be drawn by animal power, and “ the tracks of the said railroad shall be laid flush with the surface of the said streets and highways, and shall conform to the grade as it now is, or shall be, from time to time, established or altered by the proper authorities in each case; and the said company and their assigns shall keep the surface of the said streets and highways within the rails, and for one foot outside thereof, and to the extent of the ties, in good and proper order and repair.”

On the 21st of August, 1871, the common council of plaintiff granted the defendant authority as directed by the act.

Prior to January 2, 1872, the defendant, pursuant to the powers, rights and privileges granted it, constructed its tracks through Chenango, Court and Main streets, and has, at all times thereafter, run its cars over its track and operated a horse surface railway through those streets.

On the 2d of January, 1872, the common council of the plaintiff adopted an ordinance n relation to street railroads, which, in substance, provided that all street railroad companies, that should, thereafter maintain railroads in any of the streets, should, under the direction of and as required by the common council, “improve, with such suitable material as the common council shall direct, and in a proper manner, between the rails, and shall keep the surface of the street inside the rails in good repair,” and in default thereof the common council should have the right to cause the repairs to be made, and assess tlie expense thereof upon the property of the company or sue for the same.

The charter of the plaintiff was revised by chapter 214 of the Taws of 1888. Under it, as so revised, paving could be ordered without first requiring the consent of any part of the abutting owners, and in all eases one-half the expense was to be assessed upon the owners according to extent of frontage, and it was provided that - “all repairs on said streets, or parts of streets, not including grading and paving or repaving, as aforesaid, shall be done at the expense of the city.” (Title 7, § 13.)

On the 16th of April, 1889, the common council adopted the following resolution:

Whereas, Persons owning a majority of the property fronting on Olienango street, hi the city of Binghamton, N. Y., between the railway tracks and the north line of the city, have subscribed a petition asking this council to pave said street, between said points, with Trinidad asphalt pavement, with concrete foundation; now, therefore, be it
“ Resolved, That we deem it for the best interest of said city, and the public good demands, that said street be paved with said pavement and foundation ; and be it further
Resol/oed, That we will pave said street, from the railway tracks to the north line of said city, with Trinidad asphalt pavement, with concrete foundation, and that the city engineer and corporation counsel be and they, are hereby directed to prepare proper specifications for said pavement and report the same to this council at the next meeting thereof; that the city clerk may prepare and give the necessary notice in the official paper for proposals to build said pavement.”

On the 22d of April, 1889, plans and specifications were reported ■and adopted; advertisement for pi-oposals was thereafter made, and on the 21st of May, 1889, the common council accepted the bid of the "Warren-Scharf Paving Company to construct the pavement at two dollars and eighty cents per square yard. On the 11th of June, L889, the council adopted a resolution directing the defendant to place its tracks on the established grade, and that it pa ve within its tracks, and one foot on the outer side of said track, with Trinidad asphalt pavement, with a concrete foundation, according to tlio specifications for the paving said street, from said points, which said specifications are now on file in the city clerk’s office,” to be completed within thirty days after the service on the company of a copy of the resolution. The resolution was duly served on the defendant, and it put its tracks on the grade, but refused at all times to fill between the tracks with asphalt pavement or pay for the same, but did offer to pave between the tracks with wooden blocks. The pavement was laid by the paving company under its contract with the city, and one-half the expense was paid by the abutting owners and the other half by the city. The street had not at any time prior thereto been paved. Tlie expense of paving between the rails of defendant’s tracks, at the rate of two dollars and eighty cents per square yard, was $5,181.12. This sum the common council assessed upon the defendant under the ordinance of 1872, but it has not been paid.

In the complaint the ordinance of January 2, 1872, is alleged as a foundation of liability against the defendant, and this position was apparently urged at the trial, but the referee held that the plaintiff could not base its claim on that ordinance. The correctness of this ruling is not here questioned by the counsel for the plaintiff, and it need not be further here considered. The referee, however, held that, under the provisions of chapter 501 of 1868, the defendant, became obligated and bound itself to pave the surface of the street within the rails of its track, and for one foot outside thereof, and to the extent of the ties, when duly requested or directed by the proper authorities of the plaintiff, and in the manner and with the matei'ial designated and directed by such authorities. Upon this theory he ■ordered judgment for the amount claimed by plaintiff. The claim of the defendant is that the expression in the act of 1868, “ in good and proper order and repair,” does not include paving, and that it does not impose on defendant an obligation to reconstruct the surface of a portion of the street at the arbitrary will of the plaintiff.

There are many cases in which a distinction is recognized between paving and repairing. In the Matter of Repaving Fulton Street (29 How., 429), where Fulton street, in the city of Brooklyn, having then a cobble-stone pavement, was repaved with Belgian pavement, it was held that the- work was not a repair of a street, and the expense chargeable to the city, but a local improvement, and, therefore, the subject of a local assessment. In The State ex rel. The City of Kansas v. The Corrigan Consolidated Railway Company (85 Mo., 263), the obligation on defendant was, that “ the space between the rails of said track and the street for a space of two feet on either side and along the line of said track, * * * shall be kept and maintained in good repair by said railroad company.” The street was then unpaved. The city authorities afterwards determined to pave the street with sandstone blocks, to be laid upon a foundation of concrete nine inches thick, and called upon the railway company to pave in that way between its tracks. It was held that the defendant was not liable, it being said that an obligation to repair a street is not an obligation to construct thereon a new pavement. A similar view was taken in Mayor, etc., of Baltimore v. Scharf (54 Md., 499, 525), where the obligation on the street railroad company was to keep its tracks and two feet on each side of it “ in thorough repair,” and the improvement was to repave with Belgian pavement in place of cobble-stone. In Western Paving and Supply Company v. Citizens’ Street Railway Company (26 N. E. Rep., 188; S. C., 28 id., 88) the obligation was, that “ the said company shall keep the tracks and two feet on the outside of each rail, together with all bridges, and the crossings of all gutters, at all times in good repair, to the satisfaction of the common council.” It was held that the company could not be compelled to pay the expense of regrading with asphalt.

Upon the other hand, in Middlesex Railroad Company v. Wakefield (103 Mass., 261, 266), it is said that no sound distinction can be made between needful repairs and such improvements as are required by the public good. In People ex rel. City of Detroit v. Fort Street and Elmwood Railway Company (41 Mich., 413) it was assumed that a liability to keep “ in good order and repair ” included paving. And so it was in Ridge Avenue Railway Company v Philadelphia (124 Penn. St., 219) under an obligation to keep “in perpetual good repair.” In Huggans v. Riley (125 N Y., 88) it was held that a commissioner of highways, under the power given him to repair highways, may build a new bridge when necessary to connect the two portions of a highway interrupted by an intersecting stream. This was placed on the theory that it was necessary in order to make the highway passable.

In tbe present case the liability was assumed iu 1868 at a time when the road was not paved, and it may be assumed that since that time the use of the road has largely increased. The liability, ‘however, upon the defendant to keep it in good and proper order and repair was continuing, and what would be necessary for that purpose would depend upon the situation at the time the performance of the covenant was called for. A condition of things may be imagined that would call for some kind of paving in order to reasonably perform the agreement. Whether a kind that would amount to a reconstruction of the street would, in any event, be within the agreement is a matter of some doubt. The necessity of such, to say the least, should be clearly made to appear.

The liability in question is somewhat similar to the liability upon a railroad company, under the general railroad act, to restore a street or highway that it uses to its former state or to such state as not unnecessarily to have impaired its usefulness. In such case the company is bound not only to restore the street to its former state, but to keep the portion used by it in a reasonable state of repair. Of such a liability Judge Earl says, in Gilmore v. City of Utica (121 N. Y., 572), “ that certainly does not bind a railroad company, whenever the municipality shall resolve to pave or repave a street to conform its repairs to the absolute directions and requirements of the municipality.”

In the case before us there is no finding o.r proof that, at the time the common council of the city ordered the asphalt pavement, the space in the street occupied by the defendant was not in good and proper order and repair, or that the pavement was necessary for the purpose of keeping the street in such a condition, except as it may be inferred from the act of the city authorities in directing the pavement. The question then arises whether such act in those respects binds the defendant, or is proof against it of any facts in controversy. The counsel for the plaintiff claims, in effect, that the resolution of the common council is presumptive evidence that the asphalt pavement was necessary and proper, and cites the case of Tingue v. Village of Port Chester (101 N. Y., 294). In that ease it was simply held that in an action to restrain the sale of land for non-payment of an assessment for a local improvement and to set aside the assessment because of alleged invalidity in the proceedings, the burden is on the plaintiff to establish the invalidity complained of. In Mayor, etc, of New York v. Second Avenue Railroad Company (102 N. Y., 572), it was shown on the part of plaintiff that the street was out of repair, that the defendant after due notice .neglected to put it in repair as required by its covenant, and thereupon the plaintiff proceeded to make the repairs at a certain cost for labor and materials, employing laborers at the usual wages and purchasing materials in the usual way. It was held that prima facie the amount expended was the measure of plaintiff’s recovery. These cases do not help us here.

The rights of the defendant wore obtained from the act of the-legislature. The city authorities had no right to increase the burden on defendant. They were given’the right to establish and alter the grade but were not given the right to say what materials the defendant should use, or to decide what was necessary for defendant to do. The defendant having accepted the grant and built its railroad, there existed between it and the people, represented, as we may here assume, by the plaintiff, an obligation in the nature of a contract. (Commonwealth v. Proprietors of New Bedford Bridge, 2 Gray, 339; Chicago v. Sheldon, 9 Wall, 50.) That being so, it is not in the province of either party by its own declaration to interpret the contract or fix the extent of the liability of the other. In the case cited from Gray, page 350, it is said: “ The interpretation and construction of contracts, when drawn in question between the parties, belongs exclusively to the judicial department of the government. The legislature have no more power to construe their own' contracts with their citizens than those which individuals make with each other.” (See, also, Cooke v. Boston and Lowell R. R., 133 Mass , 188 ; State v. St. Paul, etc., Railway Co., 35 Minn., 138, 3 Wood’s Railway Law, § 191.)

But it may be suggested that the city authorities had absolute authority to pave the street and direct the kind of pavement. The same statute that gave this authority provided for the manner of the payment of the expense of such paving, and did not charge any part of it on the street railroad company. The obligation of the defendant was not in any manner affected. It still continued liable to keep the portion of the steeet used by it in good and proper order and repair. So it was the duty of the common council, as commissioners of highways, to see.to it that the streets were in proper repair, and the city was chargeable with the expense. This did not give them power to say what the defendant should reasonably have done in order to perform its agreement. (Cooke v. Boston and Lowell R. R., 133 Mass., 188 ; 2 Wood’s Railway Law, 976, § 271.) In United States v. Ross (92 U. S. Rep., 281), it is said that the presumption that public officers have done their duty does not supply proof of independent and substantive facts.

It follows that the defendant is not bound by the determination of the plaintiff’s common council that an asphalt pavement should be laid. Such determination does not, as against the defendant, presumptively prove the necessity of such pavement. The plaintiff here seeks to recover damages for the non-fulfillment by defendant of its agreement. It is, therefore, incumbent on plaintiff to show, according to the ordinary rules of evidence, breach of such agreement and what expense has by reason thereof been incurred by it that was reasonably necessary. Neither of these things are shown'. The plaintiff cannot by its own declaration determine the fact of breach, and cannot arbitrarily fix the method of repair.

The judgment should be reversed and a new trial ordered, with costs to abide the event.

Hardin, P. J., and Martin, J., concurred.

Judgment reversed and a new trial ordered, costs to abide the event.


author: Yan Brunt, P. J.:

text:
    HELEN PHILLIPS and LEWIS SCHOONMAKER, Appellants, v. JACOB LINDNER, Respondent.

      Evidence — letter relating to the forgery of a note, mitten by the malcer to the alleged indorser after its negotiation to a bona fide holder.

    In an action upon a promissory note tbe indorser defended upon the ground that his signature thereto had been forged by his son, who was the maker. The defendant, under objection and exception, was allowed to prove a letter from the son to the father, written a month after the note had been negotiated to a bona fide holder for value, in which the son confessed the forgery.

      Held, that its admission was erroneous.
    Appeal by the plaintiffs, Helen Phillips and Lewis Schoonmaker, from a judgment, entered in the office of the clerk of the city and county of New York on the 26th day of January, 1891, upon a verdict for the defendant Jacob Lindner, after a trial at the New York Circuit before the court and a jury; also from an order, entered in said clerk’s office on the 15th day of January, 1891, denying- the plaintiff’s motion for a new trial.
    The action was brought to recover the amount of a promissory note of which the plaintiffs were hona fide holders for value.

      E. L. Mooney, for the appellants.

      W. O. Kellogg, for the respondent.
   Yan Brunt, P. J.:

This action was brought to recover upon a promissory note made by one George J. Lindner to the order -of one George Morell, and indorsed by said Morell and claimed to have been indorsed by the respondent Jacob Lindner. The sole defense of said Jacob Lindner was that his alleged indorsement of the note was a forgery.

Upon the trial of this action, the plaintiff gave certain evidence tending to prove that the indorsement upon the note in question was made by the defendant Jacob Lindner.

The respondent denied that the indorsement upon the note was his signature, and endeavored to show that it had been forged by his son, the maker of the note.

Among other evidence which was introduced to support this claim was a letter to him dated about a month before the note fell due, purporting to have been written by his son admitting the forgery. The introduction of this letter -was objected to as incompetent, immaterial and irrelevant, and as not binding upon the plaintiff, and hearsay evidence. These objections were overruled, the letter admitted in evidence and exception taken.

This, seems to have been clearly error. ~Wo are referred to the ease of Smith v. National Benefit Society (123 N. Y., 85), as supporting this ruling; but an examination of that ease shows that it has no application whatever to the one at bar. The question involved in that case was as to whether insurance was obtained resulting from a preconceived design to defraud the insurance company, and acts and declarations of the party insured were admitted for the purpose of establishing that intent. In the case at bar no such issue whatever was presented, no question of intent was involved. It was a question of fact as to whether the defendant had or had not indorsed this note.

The other case (Magee v. Osborn, 32 N. Y., 669), has not the slightest application to the question presented by the exception under consideration.

The judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.

Daniels and Ingraham, JJ., concurred.

Judgment reversed and new trial ordered, with costs to appellant to abide event.