text:
    ANDREW COSGRIFF and Another, Appellants, v. WILSON P. FOSS and Others, Appellants, Impleaded with WILLIAM DEWEY, Respondent.

      Partition — a tenant who malm improv&mmts for his own benefit, during the lease and while the owner of an undivided interest in the fee, cannot obtain an allowance for them in an action for partition.

    ■William Dewey, in. 1889, leased property, containing a stone quarry, from Catharine Blauvelt for three years, with a right to use the quarry. In 1889 Dewey purchased an undivided interest in the land. In 1890, persons named CosgrifE, Conklin and Foss purchased the remainder. Dewey, while tenant, in order the better to work the quarry, made considerable improvements.
    In January, 1891, Cosgriff brought an action to obtain a partition of the land in question, in which action Dewey interposed an answer setting up the fact that he had made certain improvements which had greatly enhanced the value of the premises:

      Held, that the case must be decided as one between landlord and tenant, and without regard to the tenancy in common.
    That the improvements of Dewey were made during the life of the lease, and as a new source of profit to himself, and his rights were only those of an outgoing tenant to remove fixtures.
    That he could not claim for improvements which had- been made on the lands for his own benefit.
    Appeal by tbe plaintiffs, Andrew Cosgriff and Jane Cosgriff, bis wife, and by tbe defendants, William P. Foss, Anna De Bann Foss, bis wife, and Jacob E. Conklin, from that part of a judgment of the Supreme Court, entered in tbe office of the clerk of tbe county of Rockland on the 12th day of April, 1892, by which tbe value of certain improvements made by said Dewey were directed to be deducted from tbe shares of tbe appellants and added to the share of Dewey, in addition to bis share of tbe proceeds of sale of tbe premises described in tbe complaint; also from that part which confirmed tbe report of tbe referee, and overruled tbe exceptions thereto ; with notice of an intention to bring up for review upon tbe appeal an order of tbe Supreme Court, entered in said clerk’s office on tbe 11th day of January, 1892, by which a reference was ordered to take proof of the value of such necessary and substantial improvements as have been made on tbe premises described in tbe complaint in this action by tbe defendant, William Dewey, if any, since August 31,1889, other than ordinary repairs and other than such machinery, buildings or other property as he is entitled to remove under his lease, fully set forth in the complaint, and report the same with his opinion thereon to this court.
    The action w&s brought to obtain the partition of certain lands in Rockland county, and was tried before the Kings county Special Term.

      Irving Brown, for the plaintiffs, appellants.

      Garrett Z. Snider, for defendants Foss' and Conklin, appellants.

      Arthur S. TorrvpMns, for defendant Dewey, respondent.
   Barnard, P. J.:

Catharine Blauvelt, in March, 1S89, was the owner of a piece of mountain land in Rockland county, on the west shore of the Hudson river, being one of the pieces described in the complaint. The tract consists of about ninety-six acres. There was then a stone quarry opened on the north end of the land along the Hudson river. The owner, in March, 1889, gave a three years’ lease of the property for a stone quarry to "William Dewey. The owner reserved her right to cut the wood on the land and to lease to other persons any part of the premises which could be used without injury to the said business of defendant. In August, 1889, Dewey purchased seven-sixteenths of the land. In August, 1890, the plaintiff Cosgriff and the defendants Conklin and Foss bought the remaining nine-sixteenths of the land. Dewey, while in possession as tenant, extended the quarry at considerable expense and deepened the access to the same from the river, and made docks to facilitate the working of the quarry and the delivery of the product therefrom. The referee has allowed for the expense of adding to the quarry and also for the river access. The court confirmed the report as to the quarry, but disallowed the same as to the expense upon the river front and in the river. The lease provided for neither. The tenant had, at least, a restricted right as tenant, but he had the first right to purchase at a price which any other person would give for the same. The tenant had the right to remove at any time during the lease any machinery or buildings which he may erect or place on said premises.” Foss and Conklin own the lease to Dewey. As between Mrs. Blauvelt and Dewey, Dewey could make no claim against the landlord. The improvements were made as a new source of profit, and during the existence of the lease for years. Dewey bought subject to his own lease to Blauvelt, and so did his co-tenants in common; and Dewey attorned to them after they purchased. The leased expired in March, 1892, over a year after this action was commenced. The case should be decided without reference to the tenancy in common, but solely as between landlord and tenant. The lessee had the right to ojien quarries on the demised property for his own profit. lie did so, and at the end of the lease he could take away his appliances and buildings. The case clearly resembles Scott v. Guernsey (48 N. Y., 106). In that case certain devisees of a remainder, during the existence of a life estate, made improvements, and they were held not entitled to recover: The case of a mere tenant making the improvements under a lease would be much stronger against his right to compensation. The case of Ford v. Knapp (102 N. Y., 135) does not change this rule. An old mill was owned by two persons. The interest of one was sold by execution. The other owner did what “ was natural and normal to the use and character of the property, and such as joint-owners of equal ability might be exjiected to join in making.” Pending the time of the sale, and of the period of redemption, a peculiar equity was thus presented which does not exist in this case. Here the improvements were made upon a bare hillside, and solely for the profitable return to a tenant for years. If we are right in this conclusion, it is not necessary to consider the question of the docks and improvements erected below high-water mark. The trial judge disallowed them, and we think that Dewey can recover for no improvements on the main land, because they were made for himself. He had the right to purchase and did not do so. The only right under the lease, as between himself and his co-tenants, was to take off such things as were provided for by the lease and during its existence.

The judgment should be modified so that the allowance for improvements be stricken out and the judgment otherwise affirmed, with costs to appellant out of the proceeds of the sale.

Dykman, J., concurred; Cullen, J., not sitting.

Judgment modified by striking out allowance for improvements and affirmed in other respects, with costs to appellant out of proceeds of sale.


source: Caselaw Access Project

author: Barnard, P. J.:

license: Public Domain

text:
    THE BROOKLYN TRUST COMPANY, Plaintiff, v. HENRY P. TOLER, Defendant.

      Sills and notes — a certification of a check by mistake — notice of the mistake — its .' effect _ effect of payment of the check — rights of a creditor of the maker of the check in its proceeds.

    William T. Whitelionse gave a check, payable to the order of the president of a Stock Exchange, as a margin to secure a short sale of stocks by Whitehouse to-one Cornisli. The check was drawn upon a trust company, which by mistake ‘certified it as good. On the next day after such certification the company endeavored to rectify the mistake and demanded the check of the holder, the Stock Exchange, and offered to pay to Cornish, who was a member of the Exchange, any loss sustained by him upon the short sale. This demand was refused. As the rules, of the New York Clearing House required absolute payment of a check by the party certifying it, the Trust Company paid the check. From its proceeds the Exchange paid Cornish, and the balance remaining in its hands was attached in' actions brought by Henry P. Toler,' as a creditor of Whitehouse and as assignee of claims against him held by other members of the Exchange, in which actions Toler subsequently recovered judgment.
    Upon a submission of the controversy between Toler and the Trust Company, as to their respective rights in the proceeds of the check, it was

      Held, that Toler could not recover.
    That as the Trust Company had given immediate notice of the mistake' it could revoke the certification, except in so far as it had caused a change of circumstances.
    That the Exchange could keep only so much of the money of the Trust Company as would answer the loss which Cornish incurred by reason of the error.
    That the fact that the Trust Company had been compelled, by the rules of the Clearing House, to pay the check because it was certified, did not strengthen the title of the Exchange to the money.
    That Toler by his judgment obtained no title to the money, as he was neither a party nor a privy to the clieck, but stood simply in the position of a general creditor of Whitehouse.
    Submission of a controversy between tlie Brooklyn Trust Company, as plaintiff, and Henry P. Toler, as defendant, without action, and upon an agreed statement of facts, by which it appeared:
    That, among the members of the Consolidated Stock and Petroleum Exchange, transacting business in the city of New York, were Charles G. "Wilson, president thereof, William T. Whitehouse, L. M. Cornish, Henry P. Toler and Augustus W. Peters, and that said Peters was an officer of the Exchange, to wit, chairman.
    That, on October 21, 1891, L. M. Cornish and William T. White-house had contracted together for the sale and purchase of stocks, and among other stocks for the shares of the common stock of the Chicago, Milwaukee and St. Paul Railroad Company. The said William T. Whitehouse had sold said shares short to the said Cornish, and Cornish had called upon said Whitehouse to deposit margins securing Cornish against loss. By reason of said contract and upon demand of Cornish and to furnish him with margin and to secure him against loss, a check was drawn by William T. White-house to the order of Augustus W. Peters, chairman, and was by a clerk or messenger of said William T. Whitehouse presented to plaintiff for certification, and was by mistake certified as hereinafter stated, and thereafter was by a clerk of said Whitehouse delivered to said Augustus W. Peters as chairman of said Exchange, and was by said Peters deposited with other moneys of the said Exchange.
    That, on October'22, 1891, before ten o’clock in the morning, at which time the Exchange opens, the secretary of the Brooklyn Trust Company visited the Consolidated Stock and Petroleum Exchange and called upon its president, Charles G. Wilson, and explained the mistake that had been made and demanded the return of the check or the return of its proceeds, offering at the same time to pay to L. M. Cornish the amount of any difference established in his favor, growing out of the contract between said Cornish and said Whitehouse, and the secretary waited until the indebtedness of Whitehouse to Cornish, growing out of said transaction, had been established and had been announced, amounting to $1,568.75, and thereupon said secretary of plaintiff offered to pay that amount for the return of the check hereinbefore described, or to take from Charles G. Wilson and the Consolidated Stock and Petroleum Exchange $4,581.25.
    That it is a rule of the said Clearing House that a bank which is a m ember, or is represented by a member of the Clearing House, which has certified a check, shall honor the check in exchanges made through the Clearing House, and settle any dispute concerning the certification with the parties in interest, without involving the Clearing House in the dispute.
    That the Trust Company paid the check, and the proceeds thereof, viz., the sum of $6,150, was received by the Consolidated Stock and Petroleum Exchange.

      That the Consolidated Stock and Petroleum Exchange thereafter paid the claim of L. M. Cornish, $1,568.75, and this payment is not questioned by the Brooklyn Trust Company, and the Consolidated Stock and Petroleum Exchange had in its possession the balance of the proceeds of said check $4,581.25.
    That Henry P. Toler, on the 26th day of October, 1891, duly commenced three suits in the City Court of New York City against said Whitehouse, and on October 26,^1891, duly obtained an attachment in each- of said three actions, to be issued by the said court against the property, effects and credits of said Whitehouse, which attachment was, on the 26th day of October, 1891, delivered to the "sheriff of the city of New York, and was by him on that day duly served on said Charles G-. Wilson, in whose custody the proceeds and avails of said check then were.
    That said Toler, on the 10th day of February, 1892, duly obtained judgment in each of the said three actions against said Whitehouse, in said New York City Court, aggregating $5,965.39, transcripts of which were filed in New York county, and executions on which were issued to the sheriff of New York city and county on the 10th day of March, 1892, which executions the sheriff held wholly unsatisfied.

      William Rf. Dyhman, for the plaintiff.

      Royal 8. Creme, for the defendant.
   Barnard, P. J.:

On the 21st of October, 1891, the Brooklyn Trust Company certified a check to be good which was drawn by William P. Whitehouse on the Trust Company to the order of Augustus W. Peters, chairman. Peters was chairman of the Consolidated Stock and Petroleum Exchange. The -check was given as a margin to secure L. M. Cornish upon certain railroad stock. The check was delivered by Whitehouse to Peters and Peters deposited the check with other moneys of the Exchange. The certificate was made by mistake, and on the 22d of October, 1891, before 10 a. m. the Exchange had notice of the mistake. The Trust Company demanded the check and offered to pay the loss realized by Cornish. This was $1,568.75. On the same day Whitehouse suffered other losses to members of the Board of tlie Stock and Petroleum Exchange. The defendant represents these claims other than Oornisli, and as such owner demands the money after Cornish is paid, of the Exchange. The Exchange cannot keep the money excejit to answer the Cornish loss. The Trust Company gave immediate notice of the mistake, and, except so far as there was a change of circumstances which had occurred by reason of the mistaken certification, a revocation of the certificate that the check was good could be made. (Irving Bank v. Wetherald, 36 N. Y., 335.)

The payment of the check by the Trust Company through the clearance house, to comply with the rule that a certifying bank must pay the check and settle all questions of validity with the parties to the paper, did not give the Exchange any better title to the money than it had before. The Exchange had no title except as to the Cornish claim, and Toler, by his judgment against 'White-house, got no title to the money which neither the Exchange or Whitehouse owned. Only one of the claims merged if Toler knew of the existence of the certified check when the stock order was executed. He was neither a party or a privy to the paper, and, so far as the case shows, had no better right than any of the general creditors of- Whitehouse.

There should be judgment upon the submitted case for the plaintiff.

Dykman, J., concurred.

Judgment for the plaintiff upon submitted case, without costs.


author: Cullen, J. :

text:
    CHARLES H. GROSS, Plaintiff, v. THE PENNSYLVANIA, POUGHKEEPSIE AND BOSTON RAILROAD COMPANY, Appellant.

      Torts — joint tort-feasors — only one satisfaction is permitted — an accident caused by the combined negligence of two railroads — rights of the tort-feasors inter se.
    An engineer of the Central New England and. Western Railroad Company was injured by a collision occurring on that road between its engine and one belonging to the Pennsylvania, Poughkeepsie and Boston Railroad, which latter engine the former comjiany had permitted to enter upon its tracks in order to obtain water.
    The injured engineer brought an action against his own road and recovered therein the damages caused by his injury. He also brought an action against the Pennsylvania, Poughkeepsie and Boston Railroad Company, and recovered a verdict therein.
    Theicompany employing him settled the judgment of the engineer against it, and at the same time took an assignment of the engineer’s judgment in the action against the Pennsylvania, Poughkeepsie-and Boston Railroad Company. Thereupon the Pennsylvania, Poughkeepsie and Boston Railroad Company moved to cancel this latter judgment.

      Held, that the motion should be granted.
    That, although the recovery in each action was for distinct acts of negligence upon the part of the railroad company sued, yet the injury and loss was, as to the' engineer, single, his damage having resulted from the combined negligence of both.
    That, as the tort was joint, a satisfaction by one joint tort-feasor-discharged the engineer’s claim against the other.
    That, although it might be true that it was the negligence of the Pennsylvania, Poughkeepsie and Boston Railroad Company which caused the accident, that question had not been, and could not have be?n, tried in either action, and that, if it was to be decided, the Pennsylvania, Poughkeepsie and Boston Railroad Company was entitled to have that issue tried in a separate action.
    Appeal by the defendant, the Pennsylvania, Poughkeepsie and Boston Railroad Company, from an order of the Supreme Court, entered in the office of the clerk of Orange county on the 30th day of March, 1892, denying a motion to have the judgment in this action canceled by the owner thereof, the Central New England and Western Railroad Company.

      Greene & Bedell, for the appellant.

      Milton A. Fowler, for the Central New England and Western Railroad Company, respondent.
   Cullen, J. :

This is an appeal from an order denying defendant’s motion to cancel the judgment entered in this action. The plaintiff, an engineer on the Central New England, etc., Railroad Company, was injured by a collision occurring on its road with an engine of the defendant company, which the first-named company had allowed to enter upon its tracks to obtain water. The recovery in this action was based upon the negligence of the defendant’s engineer in failing to “ flag ” his engine. Subsequently the plaintiff brought an action against his employer, the New England, etc., Company, and recovered on the claim that that company was negligent in permitting the engine of the other road to run upon its tracks at the particular time. The New England, etc., Company, settled with the plaintiff and took from him a release, and also an assignment of the judgment against the defendant.

We think the motion should have been granted. Though the negligence of the two companies consisted of wholly distinct acts, still the injury and tort which constituted the plaintiff’s cause of action was single. He could not have recovered part of his damages from one company and part from the other, because the whole injury proceeded from the combined negligence of both, not part from the negligence of each. It was, therefore, a clear case of a joint tort, and a satisfaction by one tort feasor discharged the plaintiff’s claim against the other. (Woods v. Pangburn, 75 N. Y., 495; Webster v. Hudson River R. R. Co., 38 id., 260; Barrett v. Third Ave. R. R. Co., 45 id., 628.)

It is claimed by the assignee of the judgment that, as between it and the defendant, it was the negligence of the latter that caused the injury, for the condition of the permit “to flag” the engine was not complied with, and that hence it is not precluded from recovering indemnity or contribution from its co-tort-feasor. This may well be, but has no effect on this application. On this motion the Central New England, etc., Company has but the same rights as its assignor, the plaintiff. As the plaintiff could not collect anything from the defendant, after satisfaction by the other company, his assigns cannot.

It is not possible upon this application to determine the liabilities of the two companies between themselves. It may he that the defendant by accepting the permission impliedly covenanted to use the privilege properly and with care, and must indemnify the New England Company for any loss resulting from default in these respects. But to enforce such diability an action must be brought. The defendant is entitled to a trial of that issue. The issue was not, and could not, have 'been determined in either of the actions brought by the plaintiff against the two companies.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Dykman, J., concurred; Barnard, P. J., not sitting.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.


author:
Putnam, J.:
      Mayham, P. J.: Herrick, J.

text:
    JAMES TEN EYCK and Others, as Trustees of MASTERS’ LODGE No. 5, F. A. M., of the City of Albany, Plaintiffs, v. THE RECTOR AND INHABITANTS OF THE CITY OF ALBANY in Communion with the PROTESTANT EPISCOPAL CHURCH in the State of New York, Defendant.

      Lease — anew granite block pavement is a “permanent improvement."

    A cliurcli corporation in the city of Albany was, as lessee, in possession of a certain house and lot, situated in that city, under a lease for thirty years, executed in 1859, which provided that the lessee should pay the taxes, “and also all assessments for paving, flagging or repairing the streets adjoining said premises, but assessments, if any shall be made, for opening streets, squares, or for other public purposes of an extraordinary character, or for permanent improvements, shall be paid by the said parties of the first part.”
    When the lease was made, and for more than thirty years subsequent to that time, the streets adjoining the premises were paved with cobble-stones. In 1889 the lease was renewed for five years, but upon the same terms, except that there was a reduction of the rent.
    In 1891, under an act of 1889 amending the city charter, the city paved one of the streets adjoining the premises with a granite-block pavement, and assessed on the premises in question a part of the expense thereof, amounting to almost two years’ rent.
    Upon a submission of the controversy between the landlord and tenant as to which, under the language of the lease, must pay this assessment, it was

      Held, that it fell upon the owner to do so.

      Tliat it was the tenant's duty to pay for all repairs to the existing pavement.
    That the laying of a new pavement of a different material, at an expense equal to two years' rent, must be held to constitute a “permanent improvement.''
    That the court will take judicial notice that a new granite pavement is a permanent thing, lasting and not subject to change. (Herrick, J,, dissenting.)
    Submission of a controversy between'James Ten Eyck, John TI. Quinby and Edwy L. Taylor, as Trustees of Masters’ Lodge No. 5, E. A. M., of the city of Albany, as plaintiffs, and the Rector and Inhabitants of the City of Albany in communion with the Protestant Episcopal Church in the State of New York, as defendants, without action, upon an agreed statement of facts, under section 1219 of the Code of Civil Procedure.
    The question presented by the submission was whether, under a lease of a certain house and lot in the dity of Albany, the defendant was obligated to pay an assessment for repaving the street in front of the lot with a granite-block pavement, which was laid thereon, under the provisions of the thirtieth section of the charter of the .city of Albany (chap. 298 of the Laws of 1883, as amended by chapter 111 of the Laws of 1889). The street in question, which was paved with granite blocks, was known as Maiden lane, in the •city of Albany, and ran westerly from the Hudson river, crossing Rroadway, to Eagle street, and being nearly parallel to State street.

      Arthur L. Andrews, for the plaintiffs.

      Abrcohwm Lansing, for the defendant.
   Putnam, J.:

Defendant is in possession of premises situated on Maiden lane and Lodge street in the city of Albany, under a lease executed on April 30, 1859, for a term of thirty years, at a yearly rent of $500. Said lease contains the following covenant: “ During the continuance of the said term, the said party of the second part shall pay all taxes and water rents, which shall be lawfully assessed or charged upon the said .premises, and also all assessments for paving, flagging or repairing the streets adjoining said premises, but assessments, if any shall be made, for. opening streets, squares or for other public purposes of an.extraordinary character or for permanent improvements, shall be paid by the said parties of the first part.”

On April 25, 1889, said lease was renewed for five years, at tlie annual rent of $400, but with the same conditions and covenants-contained in the original lease.

At the time of the execution of said lease the streets known as Maiden lane and Lodge street had been laid out and graded “ under the laws and ordinances applicable to the city of Albany, and had been and were then paved and curbed and the expenses thereof had been paid for by the owners of the property adjoining said streets and by the owners of the property in question to the extent of their proper proportion thereof. * * * The pavement of the roadway, as so paved was of cobble-stone, which pavement, from use and the nature of the soil upon which the same was laid, required frequent, and, usually annual, repair; the sidewalks of said streets had been and were at the said date laid with flagstones. Cobble-stones were the pavement in universal use in the city at that time, and no other kind of pavement was then generally known in cities.”

On the 8th of April, 1889, an act was passed by the legislature amending chapter 298 of the Laws of 1883, entitled an act to provide for the government of the City of Albany, under which the common council of said City of Albany, in the summer and fall of the year 1891, caused Maiden lane to be repaved with granite block pavement and suitable cross-walk stones and recurbed, and the officers of the city assessed the expense of the work, labor and services and materials for such work upon the property adjoining said street, and in part upon the property described in said lease. The said premises were duly sold for default in the payment of said assessment, which amounted to $799.79, being' the amount assessed, with interest and charges.

The plaintiffs claim that the defendant, under the above-quoted clause of the lease, is legally bound to pay the aforesaid assessment. The defendant insists that it is only bound to pay for ordinary repairs to the street, and that the said assessment being for unusual and extraordinary, as well as permanent improvements, the assessment, therefore, under the lease, is for the plaintiffs to pay.

If the covenant of the defendant had ended with its promise to pay “ all assessments f 'or peeving, flagqi/ng or repairing the streets aeljommg said premises,” no serious question would arise as to its liability, although the assessment in question was made under the provisions of a statute passed subsequently to the date of the lease. (Post v. Kearney, 2 Comst., 394.)

“ Paving ” is defined to be the laying of streets with pavement, and, assuming that this word in the lease has the same meaning as “ repaving” the covenant above- to pay for paving, flagging or repairing, if unmodified by the subsequent part of the sentence, might be construed as an agreement to pay for all that constitutes paving — the material of which a pavement is formed as well as the work of placing it. But that part of the clause above quoted, in reference to defendant paying for assessments, is modified by the balance thereof, viz.: “ But assessments, if any shall he made, for opening streets, squares or for other public purposes of am, extraordinary character, or for permanent improvements, shall he paid by the said parties of the first part.”

The covenant of defendant, therefore, taking the whole sentence together, is an agreement to pay all assessments for paving, flagging or repairing streets adjoining said premises, except assessments for opening streets, squares or for other public purposes of an extras ordinary character or for permanent improvements, which shall be paid for by the parties of the first part.

The assessment for repaving and reeurbing IVIaiden lane in 1891 was doubtless an assessment for a public purpose, and the question to be determined is, was it an assessment to pay for work of an extraordinary character or in the nature of a permanent improvement ? Extraordinary is defined to mean beyond or out of the common •order or rule; not usual, regular or of a customary kind; not ordinary ; remarkable; uncommon ; rare".

It appears that when the lease was made in 1859 the streets ■adjoining such premises, and generally in the city of Albany, were paved with cobble-stones, and I infer from the case that they remained in that condition, with ordinary repairs, until the repaving in question in 1891, a period of over thirty years. At this time, in 1891, the whole pavement was removed and replaced with granite.

The question submitted is not free from doubt, and I have had some hesitation in reaching a conclusion. I think, however, that the covenant contained in the lease, on the part of the defendant, was not one to pay assessments for removing a pavement already •existing and to lay down a new and' expensive pavement with entirely different materials. I think the agreement should be construed to mean that defendant would make the ordinary repairs, keeping the pavement existing when the lease was made in proper condition.

The new granite pavement for which the assessment was made was a repavement of the street in place of the old pavement that had remained over thirty years. .Hence it was a rare, unusual,, infrequent kind of work. It was not ordinary; it was uncommon.. The fact that the new pavement was put down after using the old. pavement for over thirty years shows that it was an extraordinary-repair. The assessment was also for a public purpose of an extraordinary character because of its amount. The annual rent reserved in defendant’s lease was $400. The assessment was for $800, twice-the amount of the annual rent. A repair costing that amount-cannot be deemed ordinary The assessment, therefore, was for a. public purpose of an extraordinary character.

I think this construction of the covenant in question will carry out. what may be deemed to have been the intent of the parties to the contract. I also am of the opinion that the assessment may properly be considered as one made by the city to pay for a permanent improvement. The old cobble-stone pavement was taken up and replaced by granite. This pavement is of a permanent character. “ Permanent” is defined to mean not temporary or subject to change;, abiding; remaining; fixed or enduring in character, state or place. I think that the court may take judicial notice that the new granite pavement of the character described in this case is permanent, lasting and not subject to change.

In Twycross v. Fitchburgh Railroad, Company (10 Gray, 293), Justice Thomas, in delivering the opinion of the court, remarked, (page 295), in reference to a new pavement laid in front of the plaintiff’s premises, referred to in the opinion: “ It is a permanent, improvement of the estate, the benefit of which is to be found in the increased value of the estate, and in the increased rent which it would permanently command.”

I conclude, therefore, that under the clause in the lease, to which our attention is called, the plaintiff was liable to pay for the new pavement in question, and that, therefore, the defendant should have judgment on the case submitted, with costs.

Mayham, P. J.:

The questions in this ease grow out of the construction to be placed upon the following exception in the lease: “ But assessments, if any shall be made, for opening streets, squares, or for other public purposes of an extraordinary character, or for permanent improvements, shall be paid by the said parties of the first part.”

If this assessment comes within any of the above exceptions, it must be under that which exempts the lessee from the payment of taxes for permanent improvements. The street was paved with cobble pavement at the time of making and renewing the lease. That kind of pavement necessitated frequent relaying, paving or repairing, for which the lessee under the lease would be clearly liable That kind of pavement was in universal use in the city of Albany at that time, and it seems that it required the authority conferred by chapter 298 of the Laws of 1883 to enable the common council to adopt the more permanent, but more expensive, kind of pavement known as Belgian block.

It is by no means probable that the parties to this lease, either when it was-made or renewed, had in contemplation a repavement of this street with a pavement of this character. Nor do I think the language of the lease, which binds the lessee to pay “ all assessments for paving, flagging or repairing the streets adjoining said premises,” necessarily embraces this kind of repavement, especially when read in -connection with the paragraph relating to “ permanent improvements” above quoted.

By that paragraph or provision of the lease the lessee is exempted from taxes imposed for permanent improvements, and it is difficult to conceive of a more substantial or permanent improvement than that of paving a street with granite block. The lease does not, in express terms, require the lessee to pay for “ repaving,” but for “■paving,” which' means when pavement is laid for the first time on a dirt road; repaving is when an old pavement is replaced by a new one; If, by the conditions of the streets at the time of making or renewing the lease, there was no “paving” that could be required, the lessee was only the more secure from that burden, and the court cannot import into the agreement any word that could increase the defendant’s liability.

If, therefore, that provision in the lease is to have any effect, it must be applicable to the permanent improvement of paving this street with granite block. , If this tax is imposed upon the tenant, it or the rector, by whom it' is represented, would be required to pay for the use of the premises in 1891, about three times the amount of rent stipulated in the lease, a burden which should not be cast upon the defendant, unless by the clear terms of the lease it assumed that burden which I do not think it did.

I, therefore, concur in the conclusion reached by my Brother Putnam in this case, that the defendant should have judgment, with costs.

Herrick, J.

(dissenting):

The defendant is in possession of premises situated on Maiden lane and Lodge street in the city of Albany, under a lease executed on April 30, 1859, for a term of thirty years, at a yearly rent of $500. Said lease contains the following covenant: “ During the continuance of the said term the said party of the second part shall pay all taxes and water rents which shall be lawfully assessed or charged upon the said premises, and also all assessments for paving, flagging or repairing the streets adjoining said premises, but assessments, if any shall be made, for opening streets, squares or for other public purposes of an extiaordinary character or for permanent improvements, shall be paid by the said parties of the first part.”

On April 25, 1889, said lease was renewed for five years, at the annual rent of $100, but with the same conditions and covenants contained in the original lease.

At the time of the execution of said lease the streets known as Maiden lane and Lodge street had been laid out and graded under the laws and ordinances applicable to the city of Albany, and had been and were then paved and curbed and the expenses thereof had “been paid for by the owners of the property adjoining said streets .and by the owners of the property in question to the extent of their proper proportion thereof. * * * The pavement of the roadway, as so paved, was of cobble-stone, which pavement, from use and the nature of the soil upon which the same was laid, required frequent, and, usually annual, repair; the sidewalks of said streets had been and were at the said date laid with flagstone. Cobble-stones were the pavement in universal use in the city at that time, and no other kind of pavement was then generally known in cities.”

On the 8tli of April, 1889, an act was passed by the legislature amending chapter 298 of the Laws of 1883, “ entitled an act to provide for the government of'tlie City of Albany,” under which the common council of said City of Albany, in the summer and fall of the year 189Í, caused Maiden lane to be repaved with granite-block pavement and suitable crosswalk stones, and recurbed The officers of the city assessed the i expense of the work, labor and services and materials for such work upon the property adjoining •sajd street, and in part upon the property described in said lease. The said premises were duly sold for default in the payment of said ■assessment, which amounted to $799.79, being the amount assessed, with interest and charges.

The plaintiffs claim that the defendant, under the above-quoted clause of the lease, is legally hound to pay the aforesaid assessment. ‘The defendant insists that under the aforesaid clause it is only bound to pay for ordinary repairs to the street, and that the said ■assessment is for unusual and extraordinary, as well as permanent, improvements, and the assessment, therefore, under the lease is for the plaintiffs to pay. The intent of the parties must be gathered from the language of the instrument if possible, and seemingly inharmonious and conflicting expressions must be reconciled. It seems to me that the evident intent was that the defendant should pay the expense or assessments for keeping the street adjoining the leased premises in proper condition; keeping them paved and in order.

The charter of the city of Albany (chap. 298 of the Laws of 1883, tit. 9 and 10) recognizes three classes of paving work upon its streets; “ paving,” when a pavement is laid for the first time upon a new street, or one theretofore having only a dirt road-bed; “ repaving,” where a street has once been paved and the old pavement is taken up and a new one laid in its place; and, repairing,” where the pavement is not entirely relaid, but defects in it are made good. The agreement to pay assessments here was part of the rent, and to confine the meaning of the word paving ” in the agreement to the signification attached to it in the charter of the city would render it of no value whatever, because, as appears from the submitted case, the street in question had been paved before the execution of the agreement between the parties hereto, and hence could not be paved again ; it could be repaved or repaired, but never “ paved.” If the construction contended for by the. defendant is correct, it is released from all liability to pay that portion of the rent to be paid by taking care of the assessments for paving and repaving the streets,, because, as we have seen, the street can never be “paved,” and now being “ repaved ” with granite block pavement, no assessment can be made for repairing such pavement, the city being bound to keep it in repair at its own expense. (Chap. 298, Laws of 1883, tit. 10, § 3.}

If nothing had been said about paying assessments for paving the streets, we might then consider paving the street a permanent improvement for which the defendant was not to pay under that clause exempting it from paying assessments for permanent improvements. Probably paving or repaving a street may be considered a permanent improvement to property. But in giving or trying to give effect to all the language of an agreement, where in one sentence or part of a sentence there is a specific provision to pay assessments for various things specifically set forth, among others, for paving a street, and in another sentence or part of the same sentence assessments for specific purposes, including assessments for permanent improvements are excepted, it seems to me that the reasonable construction is to hold that paving streets was not a permanent improvement within the meaning and intent of the parties making the agreement. Paving in the agreement here must be construed in its broader signification as including “ repaving; ” as-meaning, in fact, the laying of a pavement through or upon the street.

And paving assessments being specifically mentioned as assessments to be paid, they must be held to be excepted from the general terms of the clause, “ but assessments, if any shall be made, for opening streets, squares or for other public purposes of an extraordinary character or for permanent improvements, shall be paid by the said parties of the first part.” Neither can the assessment in question be excepted as one of an extraordinary character. First. Because paving or repaving streets is not an extraordinary thing .to be done in a city; the amount of the assessment does not determine the question; it is the purpose for which the assessment is levied that must be of an extraordinary character; but the amount itself in this case, considering the frontage of the premises and the character of the pavement on the street paved, is not excessive or extraordinary. Second. It does not come within the meaning of that phraseology, becauée it was before specifically mentioned as one of the assessments to be paid, and, therefore, cannot he held to be one of those assessments which, in the general terms set forth in the case, it is provided shall be paid by the parties of the first part to the agreement; general terms and expressions must give way to-specific, ones.

I am, therefore, of the opinion th&t under the clause in question the defendant must pay the assessment for the new pavement, and that the plaintiff should have judgment upon the case submitted, with costs.

Judgment on submitted case ordered for defendant, with costs. •


author: Putnam, J.:

text:
    PHILIP MATTES, Appellant, v. CHARLOTTA FRANKEL and Another, Respondents.

      Estoppel — representation as to the existence of a right of way not mentioned in the deed — it passes as an “ appurtenance ” — effect of withdrawing improper evidence from the consideration of the jury.

    Philip Mattes conveyed certain premises to Cliarlotta Frankel and Joseph Schwartz, hy a deed which made no mention of a right of way to a barn upon the premises, the only access to which was through a lane which ran between the lot which Mattes sold and the adjoining lot which he retained, and thence across the rear of the lot which Mattes retained. It appeared, however, that just before the deed was given Mattes showed' Schwartz the route to the barn, and pointed it out as the right of way to the barn.
    Upon the trial of an action brought by Mattes against Frankel and Schwartz for an alleged trespass on the rear of the Mattes lot, Schwartz testified that in purchasing he relied upon this representation of Mattes.

      Held, that the act of Mattes in pointing out the right of way to the barn as an existing right of way was a representation that such right of way existed, and that as the purchaser had relied upon it Mattes was estopped to deny its existence.
    That, although not mentioned in the deed, tlie right of way would pass under the word “appurtenances” contained in the deed.
    That parol evidence, relative to the representations of a grantor prior to the execution of a deed, may be shown to establish an estoppel or fraud. .
    That where improper evidence is received upon a trial, and the court, without striking out the evidence, withdraws it from the consideration of the jury and instructs them that the only question is one upon which the improper evidence had no bearing, the judgment will not be reversed on appeal.

      Appeal by the plaintiff Philip Mattes from a judgment of the Supreme Court, entered in the office of the clerk of the county of Ulster on the 27th day of May, 1890, upon a verdict in favor of the defendants; and from an order of said court, entered in said clerk’s office on the 27th day of May, 1890, denying a motion for a new trial.

      Charles Demis and Peter Cantine, for the appellant.

      Ccmroll Whitaker, for the respondents.
   Putnam, J.:

The parties own adjoining lots on the east side of Partition street, in Saugerties, and the controversy arises out of an alleged right of way claimed by defendants over appellant’s lot. In 1854 plaintiff’s land was owned by John Glennon, who, with Abigail Heath, owning the adjoining lot on the north, on May 17, 1854, by deed created a lane between the two lots for the use thereof. Defendants own the lot on the east side of Partition street, adjoining plaintiff’s lot on the south. On the rear of defendants’ lot is a bam, and the only means of access thereto by teams from Partition street is through the above-mentioned lane and across the rear of jdaintiff’s lot. The testimony shows that the owners or occupants of defendants’ lot for over thirty years-prior to this action, both before and after its purchase by plaintiff, have used to a greater or less extent said lane and way across plaintiff’s lot as a means of access to said barn.

Plaintiff obtained title to the lot he now owns on May 9,1867, and to the premises now owned by defendants on April 24, 1869. He remained the owner of both lots until March 12, 1889, when he sold to defendants the property now occupied by-the latter. No mention is made in the deed of a right of way across plaintiff’s premises or through said lane. Defendant Schwartz and one Lazarus testified, in substance, that just before the deed, and pending the negotiations leading to the purchase, plaintiff went with the said witnesses from Partition street, east, through the lane, and from the end of the lane through a gate across the rear of his lot to the barn and pointed out the said route as the right of way to the barn, and Schwartz testified that in making the purchase he relied upon such representations. There was conflicting evidence as to the representations made by the plaintiff, presenting a question of fact which was properly submitted to the jury. Plaintiff, shortly before the action, fastened up the gate atibe end of the lane, thus preventing access by defendants to their barn. They broke the fastenings and plaintiff brought this action. Defendants claim a right of way by necessity and also by prescription. The trial judge held that defendants established no right of way by necessity or prescription and withdrew these questions from the jury, but submitted the question whether the alleged representations of plaintiff as to the right of way were, in fact, made; and if made, he instructed the jury that “ the plaintiff so practically located what he sold as to give the defendants such a license, coupled with such an interest to go through this alley, that he cannot and ought not to be permitted to revoke it.”

Concurring with the view of the court below, that the evidence did not establish a right of way by necessity or prescription, the only question for our consideration is whether plaintiff having, as determined by the verdict at the time of the purchase, represented that there was a right of way to the defendant’s barn as now claimed by them, is estopped by such representations. The plaintiff was selling to defendants a lot of land with a barn on the rear. It was apparent that there was no access to the barn for teams, except through the lane in question and across the rear of the lot retained by plaintiff. The parties during the negotiations walked up this lane and across the plaintiff’s lot to the barn, and (as the jury found on the conflicting evidence), plaintiff referring to the way across his lot and the lane in question, said : “ Here is the right of way to this barn? After the execution of the deed defendants used this right of way for a pei'iod, and with plaintiff’s consent put a staple and hook on the gate, plaintiff at the time referring to the way as “ defendants’ right of way?

If in the conversation between the parties at the time of the purchase plaintiff had simply remarked that defendants should have a right of way to the barn over his property, the agreement would have been invalid and unenforceable, no such right being reserved or given in the deed. But the testimony shows not an agreement that defendants might use a right of way, but a representation that such a right of way, in fact, existed. Plaintiff having made such representations when defendants purchased, and the latter having relied thereon, is plaintiff now prevented from denying tlie existence of sucb an easement? Tbe fact tliat real estate is affected does not prevent tlie operation of tlie doctrine of estoppel. (De Herques v. Marti, 85 N. Y., 609; Mattoon v. Young, 45 id., 696; S. C., 2 Hun, 559; Trustees v. Smith, 118 N. Y., 641)

Tlie deed to defendants conveyed the appurtenances with the lot, without mentioning or describing the right of way in question. Put if such a right of way existed as represented by plaintiff, it would pass by tlie deed as an appurtenance.. (4 Kent’s Com., 467; Girard on Titles to Real Estate, 520; Parsons v. Brown, 5 Hun, 112; Huttemeier v. Albro, 18 N Y., 48.)

Plaintiff having represented to defendants when they purchased that the right of way existed, and the latter having relied upon such representations, can the plaintiff now deny that such a right of way, in fact, exists ? The rule applicable in such a case is stated in Trustees, etc., v. Smith (supra, at page 641): “ When a- party, either by his declarations or conduct, has induced a third person to act in a particular manner, he will not afterwards be permitted to deny the truth of the admission if the consequence would be to work an injury to such third person or to some one claiming under him.”

I think, therefore, as between these parties, the right of way must be deemed to exist as represented at the time of tlie purchase. The plaintiff cannot now deny representations made during the negotiations which, doubtless, induced the action of the defendants.

It follows that the court below correctly disposed of the case. Withholding all other questions from the jury, he allowed them to pass on the question whether the plaintiff, in fact, represented to defendants at the time of the purchase that the right of way as claimed existed. And if the jury found that such representations were made and relied on, instructed them that the plaintiff was estopped from denying the existence of said right of way.

The appellant claims that the court below erred in receiving parol evidence as to negotiations prior to the deed. (Corse v. Peck et al., 102 N. Y., 513.) The doctrine in the authority above cited is not applicable in this case. Parol evidence as to the representations of a grantor prior to the execution of the deed may be shown to establish fraud or an estoppel. (See cases cited above, also, Newman v. Nellis, 97 N. Y., 285.)

The appellant further suggests that the court erred in receiving and refusing to strike out the evidence tending to establish the right of way claimed by prescription. Assuming that such testimony was incompetent, yet the court, in his instructions to the jury, withdrew this evidence from their consideration and stated that the only •question for them was as to what occurred between plaintiff and defendants at or immediately prior ^o the purchase as to this right •of way. He instructed the jury clearly that the evidence did not ■establish a right of way by necessity or by prescription, and that those questions were not for them tó - consider. It was formerly held that an error in receiving improper evidence was not cured by a direction of the judge to the jury to disregard it. (Erben v. Lorillard, 19 N. Y., 299.)

In Gall v. Gall et al. (114 N. Y., 122), the court held that if improper evidence was erroneously received and stricken out the error was cured.

In Holmes v. Moffat (120 N. Y., 162), improper evidence having been erroneously received, the Court of Appeals determined that a direction of the judge to the jury to disregard such evidence was equivalent to striking it out. Under this authority the receipt of the evidence in question by the court and refusal to strike out the same does not require a reversal of the judgment, the court having directed the jury to disregard it.

The appellant insists that the court below erred in denying the motion for a new trial on the ground that the verdict was against the weight of evidence. Ye think that this is a case where the trial court properly submitted to the jury the question of fact in the case. There was conflicting evidence, and although we might on reading the testimony reach a different conclusion from that arrived at by the jury, yet we are unable to say that the evidence was so strongly preponderating in favor of the plaintiff as to render a reversal of the judgment proper.

The judgment should be affirmed, with costs.

Mayham, P. J., and Herrick, J., concurred.

Judgment affirmed, with costs.


text:
    DAVID J. JOHNSTON, Respondent, v. JOHN GARSIDE, Mayor of the City of Cohoes, and Another, Appellants, Impleaded with Others, Defendants.

      Taxpayer’s action — trying title to an office — quo warranto the only remedy — an equitable action will not lie.

    The complaint in an action alleged that hy illegal acts and proceedings two persons were holding office as fire commissioners of the city of Cohoes; that its mayor recognized these officials, and in conjunction with them proposed to appoint some person in place of the plaintiff, who was a taxpayer, and also a fire commissioner of the city, the term of office of the plaintiff being about to expire. The complaint also alleged that the persons so conspiring together were trying to obtain control of the city fire department, and it asked judgment that tbe defendant fire commissioners be enjoined from acting as such, and that all the defendants be restrained from making any new appointment.
    Upon an appeal from an order granting such injunction:

      Held, that the injunction should not have been granted.
    That the evident purpose of the action was to try the title to the office of fire commissioner.
    That this could only be done in an action in the nature of a quo warranto brought by the people.
    That the action was not maintainable as a taxpayer’s action, under section 1925 of the Code of Civil Procedure, because no facts were stated showing waste or injury to city property, either present or threatened.
    That the action was not maintainable, as being a suit in equity, to restrain the defendants from illegally interfering with the fire department.
    That an equitable action, to restrain a claimant to a municipal office from exercising it, could not be sustained.
    Appeal by tbe defendants, John Garside, Mayor of tbe city of Coboes, and Michael J. Daley, from an order of tbe Supreme Court, entered in tbe office of tbe clerk of Albany county on tbe 26th day of October, 1891, denying a motion to dissolve a temporary injunction, which injunction restrained tbe defendants Dickey and Daley from acting as fire commissioners, and restrained all tbe defendants from appointing any person a fire commissioner in place of tbe plaintiff, and from removing any official of that department or filling their places when removed, and also restrained tbe defendants from taking possession of tbe property of tbe department.

      J. F. Ormoford, for the appellants.

      O. II. Sturges and C. F. Doyle, for the respondent.
   Putnam, J.:

The complaint states that the defendant Daley was nominated by the mayor of the city of Cohoes as fire commissioner, on the 12th day of March, 1889, but was never confirmed by a vote of two-thirds of the common council of the city, as required by its charter, and hence never became vested with the office.

That defendant W. James Dickey, having been duly appointed and vested with the office of fire commissioner, for sufficient cause, was, on the Jth day of April, 1891, by the common council of the city of Cohoes, in pursuance of the provisions of said city’s charter, removed from office.

That defendant John Garside, the mayor, assumed, without authority of law, to veto the resolution of the common council removing said Dickey, and also illegally assumed to vote for the confirmation of said Daley, and now unlawfully recognizes said Daley and Dickey as fire commissioners and officials of the city; and that the said three persons intend on the 16th of April, 1891, to meet and, as a majority of the board of fire commissioners, appoint some person in place of plaintiff, whose term will then have expired.

The complaint further alleges a conspiracy between the said three persons to obtain control and possession of the fire department of the city of Cohoes and the property appertaining thereto, and demands judgment “that the defendants Dickey and Daley may be severally restrained and enjoined from further acting, or claiming; to act, as a fire commissioner o,f said city, and that defendants be-restrained and enjoined from appointing, or attempting to appoint,, any person as fire commissioner in the place of this plaintiff, and that the said defendants be further restrained and enjoined from removing, or attempting to remove, any of the officials, officers or employees of said fire department, or appointing others in their stead,” etc. Plaintiff is one of the fire commissioners of the city and a taxpayer therein.

It is well settled that it is only-in an action of quo warranto, brought by the people, that the question of title to a public office can be tried. (The Mayor v. Conover, 5 Abb., 171; Lewis v. Oliver, 4 id., 121; Buffalo v. MacKay, 15 Hun, 204; Morris v. Whelan, 64 How., 109; Palmer v. Foley, 45 id., 112.)

Plaintiff insists that the action is maintainable as a taxpayer’s action, under section 1925 of the Civil Code. It is obvious, however, that this claim is untenable. No facts are stated in the complaint authorizing such an action. It is alleged that certain parties, in violation of the law, have intruded into an office, and plaintiff imagines that such parties are about to remove employees of the fire department and appoint others, and that damage will result No actual damage — no waste of public funds- — is alleged, but plaintiff imagines that damage will result on account of the usurpation of the office of fire commissioner by defendants Daley and Dickey. As a taxpayer’s action, under section 1925 of the Code, no cause of action is stated, because no facts are stated showing waste or injury to the city property, nor any grounds to apprehend such waste other than the alleged unlawful intrusion of defendants Daley and Dickey into the office of fire commissioner.

The plaintiff further claims that the action can be maintained as an equitable one to enjoin and restrain Daley and the other defendants from illegally afeting and unlawfully interfering with the fire department of the city. But the only grounds set out in the complaint, on which the action in this view can be maintained, is that the defendants Dickey and Daley are not, in fact, fire commissioners and have unlawfully intruded themselves into said office. If they are fire commissioners of said city, the plaintiff has no cause of action. In that case defendants have the legal right to do the acts which plaintiff apprehends they intend and are about to do. But if said defendants are not fire commissioners, they have no such right. It is obvious, therefore, that the only substantial question to be tried in this action is the title of Dickey and Daley to the office in question. As we have seen, such a question cannot be tried in this action.

The cases cited by the respondent do not sustain his contention. People of New York v. Canal Board of New York (55 N. Y., 390) and People ex rel. Floyd v. Conklin (5 Hun, 452) were actions brought by the people of the State as plaintiffs, and hence are not applicable. Possibly, in an action of quo warranto by the people in a proper case, a temporary injunction may be granted. (See Fiero’s Special Actions, 746; People ex rel. Wood v. Draper, 42 Barb., 265-270.)

The case of Palmer v. Foley (supra), cited by plaintiff, was an unusual one. The plaintiff was deputy chamberlain of the city of New York and in possession of the office. As such he had under his control the city funds, amounting to a very large sum, and the defendant, it was alleged, was unlawfully about to interfere with his possession of said funds. That case was criticised, however, by West-brook, J., in Morris v Whelan (supra), and the doctrine stated by the learned justice in the case last mentioned, I think, has been generally followed. I have examined the other cases cited by the respondents, but fail to find any authority for this action. As before stated, its plain object is to try the title of the defendants Daley and Dickey to the office of fire commissioners. Practically, that is all there is to be determined. Under the pleadings, if this question were determined in favor of the defendants, plaintiff’s case would be ended. If, however, plaintiff could establish the fact upon the trial that said •defendants Daley and Dickey were not fire commissioners, he would be entitled, without showing any further facts, to all the relief •claimed, assuming that in the equitable action he has brought defendants’ title to said office can be properly tried, and that plaintiff, as a taxpayer or a fire commissioner of said city, is a proper plaintiff.

I conclude, as held in Morris v. Whelan (11 Abb. N. C., 64), that such an action as this to restrain a claimant to a municipal office from attempting to exercise its powers and duties cannot be sustained. Such action indirectly involves the question of the title to the office, which can only be tried in an action to which the people are parties. Therefore, the temporary injunction should not have been granted. There are other objections to the action and injunction not necessary to be considered.

The order should be reversed as to the appellants, with costs and printing, and the motion as to the appellants granted, with costs.

Mayham, P. J., concurred; Herrick, J., not acting.

Order reversed as to appellants, with costs and printing disbursements, and motion of appellants granted, with costs.

        Sic.


author: Herrick, J.:

text:
    NELLIE RAMSAY, Plaintiff, v. JOHN A. De REMER, Defendant.

      Trusts — a bequest “to be used especially for the interest of” a person is void — the beneficiary takes the legal estate — a devise by implication — a vested remainder— 1 R 8., p. 738, sec. 49; p. 737, sec. 47; p. 735, sec. 85.
    A testator, Henry Bamsay, bequeathed certain property, both real and personal, to his son and daughter, “in trust for my dear little grand-daughter, Nellie Bamsay, daughter of my beloved son Wilfred, to be used especially for her interest, and in case she should die without issue then all such property and interests are to be equally divided among my living children or their heirs.”
    Upon the submission of a controversy as to the ownership of the property, it appeared that a purchaser, under a contract of sale, had refused to accept a deed executed by the trustees and by Nellie Bamsay, to whom all the parties in remainder entitled to the property, in case of her death without issue, had previously conveyed:

      Held, that the trust attempted to be created for the use of Nellie Bamsay was void.
    That the estate passed to her as the person who, by virtue of the devise, was “ entitled to the actual possession of lands, and the receipt of the rents and profits thereof.”
    That there was, under the words of the bequest “if she shall die without issue,” a devise by implication to her issue.
    That she took a fee subject to be defeated only in case she died without issue.
    That the remainder was vested and could be conveyed as a future expectant estate.
    That the deed tendered was sufficient and conveyed the entire title to the property.
    Submission of a controversy between Nellie Ramsay, as plaintiff, and John A. De Remer, as defendant, without action, under section 1279 of the Code of Civil Procedure.
    The bequest contained in a codicil to the will of Henry Ramsay was as follows: “ All the property and interests originally intended to be bequeathed to my son Wilfred, I now revoke and nullify and bequeath the same to my son, Henry Ramsay, and my daughter, Isabella Ramsay, in trust, for my dear little grand-daughter, Nellie Ramsay, daughter of my beloved son Wilfred, to be used especially for her interest, and in case she should die without issue then all such property and interests are to be equally divided among my living children or their heirs.”
    The lot in question, subsequent to the death of the testator, Henry Ramsay, had been quit-claimed to Nellie Ramsay by the widow, and by all the children of Henry Ramsay, and by the trustees of Nellie Ramsay. The property of Henry Ramsay was both real and personal, and he had made by his will bequests of real estate to his son Wilfred, which by the codicil was attempted to be given to the trustees for Nellie Ramsay. A contract of, sale was entered into between Nellie Ramsay and John A. De Remer, in compliance with which a deed was' tendered to the defendant by the plaintiff, in which the trustees named in the will of Henry Ramsay also joined.

      S. W. Jackson, for the plaintiff.

      Fdwm O. Angle, for the defendant."
   Herrick, J.:

The trust intended to be created for the benefit of the plaintiff, Nellie Ramsay, was void and the trustees took no title thereunder.

“ Every disposition of lands, whether by deed or devise hereafter made, shall be directly to the person in whom the right to the possession and profits shall be intended to be invested, and not to any other, to the use of, or in trust for, such person; and if made to one or, more persons, to the use of, or in trust for, another, no estate or interest, legal or equitable, shall vest in the trustee.” (1 R. S., Y28, § 49; Birdseye’s Stat., 31YY, § 5.)

Here the words of the devise are, “ in trust for my dear little grand-daughter, Helhe Bamsay, daughter of my beloved son Wilfred, to be used especially for her interests It seems to me to -come clearly within the meaning and intent of the statute. (Rawson v. Lampman, 5 N. Y., 456; Fisher v. Hall, 41 id., 416; Syracuse S. Bank v. Holden et al., 105 id., 415.)

The trust being void, the estate attempted to be created went to the beneficiary. ‘‘ Every person who, by virtue of any grant, assignment or devise, now is, or hereafter shall be entitled to the actual possession of lands, and the receipts of the rents and profits thereof, in law or in equity, shall be deemed to have a legal estate therein of the same quality and duration, and subject to the same conditions, as his beneficial interest.” (1 R. S., 727, § 47; Birdseye’s Stat., 3176, § 3, and cases above cited.)

Hpon the death of the plaintiff the estate would go to her issue, if she had any. While it is not expressly so stated in the will, the plain implication is that the testator intended the property in question should be held and enjoyed by the plaintiff and her issue; the-provision in the will, in case “ she (plaintiff) should die without issue, then all such property and interests are to be equally divided among my living children or their heirs,” seems to me conclusive-that he intended that in case the plaintiff had issue that such issuesliould take such property and interests. And where the intent can be cleai’ly collected from the writing it is the duty of the court to give effect to that intent, provided no rule of law is thereby violated and devises by implication will be upheld where no gift of the: property is made in formal language. (Masterson v. Townshend, 123 N. Y., 458; Whitney v. Whitney, 43 N. Y. St. Rep., 841-855, and cases cited.)

The trust being void, and the estate going to the plaintiff and her-children, if she had any, she thus had,- in effect, the fee, subject only to being defeated by her dying without issue. The remainder provided for upon the death of the plaintiff without issue was a vested remainder, there being persons in being who would be entitled to-the immediate possession of the estate uporj her death without issue (1 R. S., 723, § 13; Birdseye’s Stat., 2526, § 80); and that remainder could be conveyed by such person, it being a future expectant estate. (1 R. S., 725, § 35; Birdseye’s Stat., 2529, § 102; Dodge v. Stevens, 105 N. Y., 585.)

It appears from the submitted case that all the' persons who-would have been entitled to the immediate possession of the property in question, had the plaintiff died at that time without issue,, joined, in giving a deed of such property to the plaintiff, she thus-became the owner of the expectant interests theretofore vested in them and the complete title to the property centered in her; there-was no contingent interest outstanding; she possessed an estate that upon her death would go to her issue, or if she had none, to her other heirs; this seems to me gives her a perfect title to the property; one that she could convey by deed. For these reasons, I think that,, under the terms of the submitted case, the deed tendered by the-plaintiff to the defendant would convey to him title to the premises-therein described in fee simple, free and clear of all liens and incum brances, and that, in accordance with conditions of the submission, the plaintiff is entitled to judgment against the defendant for the sum of seventy-five dollars, with interest, from April 1, 1892, with the costs of this action, for which let 'judgment be entered.

]VIa.yham, P. J., concurred ; Putnam, J., concurred in the result:

Judgment ordered for the plaintiff.


author: Herrick, J.: PutNAM, J.:

text:
    JOHN S. VAN VECHTEN and Others, Appellants, v. TEUNIS VAN VECHTEN, Respondent.

      Evidence — a mutilated letter — personal transactions with a deceased person— evidence by inference is forbidden — declarations in one’sfcmor — damaging admissions by one of several pa/rties not united in interest— Code of Civil Procedure, sec 829.
    Upon the trial of an action the plaintiffs sought to introduce in evidence a letter which had been mutilated (the first part of it having been destroyed), written . to one of them by the defendant; the plaintiffs asked the defendant, as a wit* ness, to examine the letter, and offered to allow him to state whether the missing portion was in any way connected with the point at issue. This he refused to do. The plaintiffs also offered to show that the missing portion had no such relation. The referee held that this evidence was incompetent, and refused to ' receive the letter in evidence, although its contents related to a material issue in •the case.

      Held, that it was error to exclude it.
    The action was brought by the widow and certain heirs-at-law of one John Van Vechten, and by Catharine Briggs, a creditor, to have it declared that the defendant Teunis Van Vechten held the premises in question in trust for them.
    It appeared upon the trial that John Van Vechten and wife had conveyed the premises to Catharine Briggs, who with her husband had conveyed them to Teunis Van Vechten, who was also administrator of John Van Vechten and had set up a counter-claim in this action; that Teunis had written to John Van Vechten relative to the land, letters which Teunis offered in evidence, stating that he, as administrator, had found them in John Van Vechten’s trunk.

      Meld, that the admission of the letters was improper.
    That they constituted a “transaction,” and a “communication” between the deceased person and the witness, who claimed under him, and whose claims against the deceased person were the subject of litigation, and that the letters were, therefore, incompetent under; section 829 of the Code of Civil Procedure.
    Teunis Van Vechten alleged that John Van Vechten and wife conveyed the premises to Catharine Briggs for his use, and to pay a promissory note of $2,100, dated in 1866, given by John to him, that the deed to Catharine Briggs was delivered to him, and that the reason why the conveyance was not made directly to him was because there was a judgment against him.

      Upon the trial he produced this note, with an indorsement upon it made by him, stating that the note was settled by the conveyance by John and wife to Catharine Briggs; and upon the trial he was allowed to testify that he made the indorsement before the deed was delivered to him, and that afterwards, and about September 8,1867, was the last time that he saw it before John’s death, in 1869, and that after his death he found it in his trunk.

      Held, that the evidence was inadmissible under section 829 of the Code of Civil Procedure.
    That it tended to show by inference that the note was thus indorsed, and was surrendered to John in that condition.
    That a fact which a witness will not be allowed to prove directly cannot be established inferentially by his testimony.
    That the indorsement was inadmissible, being a declaration by Teunis in his own behalf.
    That all the testimony was inadmissible as constituting a personal transaction between the defendant and the deceased.
    It appeared that while the action was pending Catharine Briggs, who claimed as a creditor, secured by mortgage, wrote letters to the defendant, which were prejudicial to the plaintiffs’ case, and indicated a change in her attitude towards the defendant.

      Meld, that the letters were admissible only against her; that the plaintiffs were not so united in interest as to make her declarations competent against the other plaintiffs.
    Appeal by the plaintiffs, John S. Van Vecbten, Mary A. Alvord and Nellie T. Van Vecbten (now Nellie T. Hunger), from a judgment of tbe Supreme Court, entered in tbe office of tbe clerk of tbe county of Clinton on tbe 24th day of June, 1890, dismissing tbe complaint upon tbe merits after a trial before a referee.
    This action was brought in 1883 by John S. Van Vecbten, Catharine Briggs, Mary A. Alvord and Nellie T. Van Vecbten against Teunis Van Vecbten. John S. Van Vecbten and Nellie T. Van Vecbten were tbe only children of John Van Vechten, who died in 1869. Mary A. Alvord, who bad married again, was bis widow. Catharine Briggs was bis sister and Teunis Van Vecbten was bis brother. Catharine Briggs bad married James A. Briggs. Tbe premises in question were Great Lot No. .37, in Township No. 6, Old Military Tract, Clinton Co. (excepting subdivisions 1, 3 and 4).
    Tbe complaint, in substance, alleged that in 1867 John Van Vecbten conveyed certain premises, known as lot No. 37, in tbe town of Clinton, to Catharine Briggs by a deed absolute in form, but, in fact, as a security to her for tbe payment of a promissory note for $1,000, made by John Van Vecbten to tbe order of Teunis Van Vecliten, the défendant, and transferred by the latter to Catharine Briggs for value, upon an express agreement that when the note was paid Catharine Briggs should reconvey to John Van Vechten; that Teunis Van Vechten had full knowledge of this agreement; that in 1874 Catharine Briggs conveyed the premises to Teunis Van Vechten by a deed absolute in form, but, in fact, in trust to manage the property for Catharine Briggs, to account for ’its profits and apply them to the payment of her note, and upon its payment to reconvey the premises to the heirs of John Van Vechten; that the defendant went into possession and has received large sums of money from the sale of a portion of said land and the ■timber thereon, but has never paid Catharine Briggs anything, except the sum of $200 in .1880; that he remains in possession and refuses to make any further payment to her or to reconvey to the heirs of John Van Vechten. A sale of the premises was demanded and from its proceeds it was asked that there be paid, first, the note of Catharine Briggs ; second, the dower of the widow of John Van "Vechten, and that the children of John Van Vechten receive the balance. The answer denied all the allegations relative to the understanding with which it was alleged in the complaint that the conveyance was made from John Van Vechten to Catharine Briggs, and also as to the defendant’s knowledge when the conveyance was made from her and her husband to the defendant, and alleged that the conveyance was absolute, in fact, as well as in form, and the defendant denied that he had paid her $200 or any sum upon any agreement with her relative to the land. The answer also set up a counter-claim against John Van Vechten upon an. open account for $4,500, and in addition upon the following promissory note :
    ££_$2,400. ££ Chateaugay, December 8, 1866.

      “ One day after date I promise to pay to the order of Teunis Van
    Vechten twenty-four hundred dollars. Value received at........
    ££ JOHN VAN VECHTEN.”
    The answer further proceeded as follows:
    That at the time of the making of said conveyance to said Catharine Briggs said John Van Vechten was desirous of paying to this defendant the amount of his indebtedness to him, and offered to convey to defendant liis interest in the lands mentioned and. described in said complaint, of which he was the owner in fee of five-sevenths only, for that purpose, so far as the value of said lands, at that time, would extend towards the payment of said indebtedness • that defendant for personal reasons requested said John Yan Yechten to convey said lands to the plaintiff, Catharine Briggs, to whom he did convey the same in trust for him, this defendant, and for no-other purpose or purposes whatever; that the consideration stated and set forth in said conveyance was $2,400, the amount of the-face of said promissory note, although the real consideration was a. much larger sum of money, to wit, about four thousand five hundred dollars besides; and the promissory note of $1,000, claimed by the plaintiffs herein to belong to said plaintiff, Catharine Briggs, as her property, said John Yan Yechten agreed to and with this defendant, to pay to him by a deed of conveyance from him, said John Yan Yechten, to this defendant of certain lands in the county of Franklin then owned by him, said John Yan Yechten, and in his possession, the same being- about fifty acres in township 7, in the town of Chateaugay, but failed so to do.
    That said promissory note for $1,000 was not the property of said Catharine Briggs, and she never had or possessed any title to or interest in the same until about the 31st day of January, 1880, and then only as a memorandum of the indebtedness of this defendant, to said Catharine Briggs for moneys placed in his hands by her husband, James A. Briggs, sometime in the year 1866, the claim for which said James A. Briggs had, prior to said 31st of January, 1880, transferred to his said wife, Catharine Briggs, as defendant is. informed and verily believes.
    That at the time’of the making and delivery to this defendant of the promissory note of $1,000 mentioned and described in plaintiffs’ said complaint, said John Yan Yechten, as defendant is informed and verily believes, was not indebted unto said Catharine Briggs in the sum of $1,000, but was owing and indebted unto this defendant in the sum of $1,000 above the $2,400 note and the other indebtedness of said John Yan Yechten to this defendant hereinbefore referred to and specified, and for which said other indebtedness of $1,000 said promissory note was executed by John Yan Yechten. and delivered to this defendant.

      The defendant- further alleged that at the time of the execution of the deed of conveyance by John Van Vechten and Mary A. Van Vechten (the plaintiff, Mary A. Alvord), of the premises in said complaint described and set forth, he, this defendant, was the rightful owner and entitled to the possession and income of two-seventlis -of the whole of said lands and premises in manner following: To one-seventh of the whole of said -conveyed premises, as one of the heirs-at-law of John Van Vechten, the father of this defendant, then deceased, and to one-seventh.of the whole of said premises by virtue of a conveyance thereof from Isaac S. Van Vechten, a brother of defendant and a son of said John Van Vediten last herein named; and which said two-sevenths of said lands and premises had before the decease of John Van Vediten, first herein named, been conveyed by this defendant to the first herein named John Van Vechten in trust for the benefit of this defendant, and without any other consideration whatsoever.
    The plaintiff served a reply denying all counter-claims.
    Upon the trial of the action the defendant testified that none of the money represented by the $1,000 note was received from Catharine Briggs, and that it was his own'-money. The letter produced upon the trial and marked for identification, “ June 25th B,” contained, among other things, this clause : “ I told you I should try to-manage matters in disposing of the land (being the land in question in this action), so as to secure for you one thousand dollars loaned to ‘John (meaning John Van Vechten), for your acc., for which I hold his note, but with the depression land value has dropped almost out of sight.” The letter was written by the defendant to Catharine -Briggs before Christmas Day, 1883. The letters of the defendant to John Van Vechten, marked Exhibits la to 12a, inclusive, related to matters concerning the lands.
    In regard to them the defendantwas asked: “ Look at those la to 12a, inclusive, and state whether you found those, as administrator, in your brother John’s trunk ? ” The question was objected to but admitted. The defendant, under objection, was allowed to state where he was when the letters were written and that he had signed them. The indorsement on the $2,400 note was as follows :
    “This note was settled for and made void on the 16th of August, 1867, by the terms for a deeding to Mrs. Catharine Briggs, of

      Mount Vernon, Knox Co., Ohio, Great Lot 37, Township 6 of the O. M. Tract, Clinton County, N. Y., excepting subdivisions Nos. one, three and four. “ TENNIS VAN VECHTEN.”
    Exhibits 18A and 19A, letters from Kate Briggs to the defendant, stated, among other things, that she had no remembrance that anything was ever said to her prior to the time of her deed to the defendant, at any time, by any one about the land being held in trust as security for her. She also stated that she deeded the land to the defendant unqualifiedly, without any agreement as to trust or security.
    As to the reasons why John Van Vechten deeded to Catharine Briggs instead of deeding directly to Teunis Van Vechten the referee found as follows:
    The plaintiff, Catharine Briggs, was not present when this conveyance was made and had no knowledge of the existence of it until months afterwards.
    January 1, 1868, she gave to the defendant a power of attorney to sell and convey or demise the premises in his absolute discretion; to collect and receive all considerations, rentals, etc. This was done at his request and with knowledge of John Van Vechten, the defendant then stating to Catharine Briggs that the premises belonged to himself and had been conveyed by deed naming her as grantee for his benefit, and because a judgment had been entered •against him some years previously in the city of New York.
    The consideration expressed in the deed from Catharine Briggs to the defendant, of September 26,1871, is one dollar, and no other consideration was, in fact, paid or received.
    Since the execution of the conveyance by John Van Vechten and wife, bearing date August 16, 1867, the defendant has been in possession of the premises thereby conveyed, has paid the taxes thereon and has openly exercised control over and treated the same as owner, exclusive of all others.
    On the 3d day of April, 1867, in the city of Boston, the defendant loaned to John Van Vechten, by delivering the money to one of the firm of which John was a member, and on his account, the sum of $1,000, for which John Van Vechten gave to the defendant his promissory note for that sum, dated that day, payable on demand to the order of Teunis Van Vechten, with interest.

      Some time prior to January, 1868, the defendant received from the husband of Catharine Briggs, to be returned to her, the sum of $1,000. About the 1st of February, 1880, for the purpose of giving her written evidence of his indebtedness to her for that sum, he indorsed upon the note for $1,00'0, given to him by John Yan Yechten April 3, 1867, “Pay to Mrs. Catharine Briggs. T. Yan Yechten,” and delivered that note, so indorsed, to her.
    The existence of any indebtedness from John Yan Yechten to Catharine Briggs, in the sum of' $1,,000 or any other sum, on the 16th of August, 1867, or at any other time, is not established.

      William P. Gcmlwell, for the appellants.

      T. F. Gomoay, for the respondent.
   Herrick, J.:

' The portion of a letter marked for identification, J une twenty-fifth “ B,” should have been received in evidence. The defendant says he wrote it, and it is admitted that he sent it to one of the plaintiffs; its subject-matter has an important bearing upon a material issue in the case. Its reception in evidence was objected to on the ground “ that it is only a portion, and that the writing has evidently been mutilated.” The defendant stated “ that pages one and two do not appear to be found, except a portion of page two. These portions appear to have been cut off.” The defendant was asked to take the letter and examine it and see if he could state the substance of the contents of that portion of the letter that had been cut off. The witness refused to examine the paper, and was sustained in his refusal by the referee. The plaintiff offered to show that the prior portion stated to have been cut off had no relation to any of the matters referred to in the paper as then presented. The referee held such evidence incompetent, and excluded it, and also refused to receive the letter in evidence. This, I think, was error. I can see no reason why a portion of a letter containing the whole of a proposition or statement, complete in itself, the matter having no connection with that contained in the other portion of the letter, should not be admitted in evidence, especially when the party against whom it is offered in evidence is the writer thereof, is a witness, and is not only given the opportunity, but is asked to state whether the contents of the portion offered is in any way connected with the contents of the missing portion, and he refuses so to state, and refuses to examine the paper for the purpose of ascertaining by such examination whether he can determine there was or was not any connection or relation between the contents of the missing portion of the letter and the contents of the portion offered in evidence.

The letters from the defendant to John Van Vechten, deceased, marked Exhibits “1 A” to “12 A,” inclusive, and the indorsement on the $2,400 note from John Van Vechten, deceased, to the defendant, the note and indorsement being Exhibit 12 in the case, were improperly received in evidence. John Van Vechten is the person through or under whom the defendant claims title to the premises in question. The letters purport to have been written by the defendant to John Van Vechten, deceased. The defendant was one of the administrators of John Van Vechten, and he claims to have found these letters in a trunk of John Van Vechten’s after his death. At the time of writing'the letters, or some of them, the defendant was in California. The defendant testifies that the signatures are in his handwriting, placed there at the time the letter or letters bear date. He also swears that the indorsement upon one or more of them is in his brother’s handwriting. .

In Resseguie v. Mason (58 Barb., 89), where an administrator brought suit upon a claim against the intestate’s son, the defendant offered in evidence certain letters that he testified were written by himself and found by him among the papers of the deceased, the court said: “ The only evidence of their having been written by the defendant to the intestate or of their having been found amongst the papers of the latter, thus showing that he had received and retained them, was the testimony of the defendant himself. The objection was taken that the defendant was incompetent to testify on the subject under section 399 of the Code, and exception to the ruling admitting the evidence duly taken. The testimony was clearly incompetent. It related to both a ! transaction ’ and a £ communication ’ between the party testifying and a deceased person whose claims against such party were the subject of litigation. The provisions of section 399 of the Code relate as well to written as to verbal communications.” Section 399 of the old Code and section 829 of the present Code are substantially the same. (See, also, Chaffee v. Goddard, 42 Hun, 147-151; Garvey v. Owens, 37 id., 498; Weed v. Hornby, 35 id., 580; Denham v. Jayne, 3 id., 614.)

Exhibit No. 12, being the note and indorsement, the defendant swears he also found in the trunk of the deceased ; that the indorsement upon it is in his, the defendant’s, handwriting. He says it was made September 2d or 3d, 1867.

The defendant’s claim is that the testator executed a deed to one Mrs. Briggs, one of the plaintiffs, for the defendant, in consideration of the $2,400, the deed, while in Mrs. Briggs’ name, being delivered to him, and he says that he made the indorsement upon the note at or before the time of the delivery of that deed to him; that afterwards (I assume he means after he had indorsed it), and about September 3, 1867, was the next time afterwards, before John’s death, that he saw Exhibit 12, and that after his death he found it in John’s trunk. This points, in inferential, but unmistakable terms, to the making of the indorsement upon the note and its surrender, thus indorsed, by the defendant to John. A fact that cannot be proved directly by the witness cannot be established inferentially by his testimony. (Grey v. Grey, 47 N. Y., 552; Johnson v. Spies, 5 Hun, 468; Jacques v. Elmore, 7 id., 675; Viall v. Leavens, 39 id., 291.)

The indorsement, as offered in evidence, is a declaration in his own behalf, and the whole affair, as testified to, is clearly a personal transaction between .the defendant and the deceased, and inadmissible in evidence. (Redfield v. Stett, 4 N. Y. St. Rep., 864.)

The letters and the indorsement upon the note, together with the testimony I have referred to, seem to me to come clearly within section 829 of the Code of Civil Procedure and the principle of the cases hereinafter cited.

The language and intent of that section embraces every variety of affairs; all means of communication, oral, written, signs or gestures, direct or indirect, positive or negative, or evidence of facts, the plain inference from which is a' personal transaction between the witness and the party deceased. If the deceased could contradict, explain or qualify the testimony, if living, it comes within the rule. (Tooley v. Bacon, 70 N. Y., 34; Koehler v. Adler, 91 id., 657; Holcomb v. Holcomb, 95 id., 316; Clift v. Moses, 112 id., 426; Mills v. Davis, 113 id., 243; Nay v. Curley, Id., 575-580; Heyne v. Doerfler, 124 id., 505, and cases cited above.)

Exhibits 18A and 19A, being letters from the plaintiff Mrs. Briggs to the defendant, I think, were improperly admitted in evidence. They were written after the commencement of the action, and while the declarations and admissions in them were competent evidence against the writer, they were not against the other plaintiffs ; there was no such joint interest between Mrs. Briggs and the other plaintiffs as would render her declarations or admissions evidence against them. And then, too, the letters were written after she had parted with title to the land in question and after the commencement of the action. They were admitted in evidence gen erally, not limited in their effect to the writer only. (Matter of Will of Baird, 7 N. Y. St. Rep., 758; S. C., on appeal, 14 id., 172, and cases cited.)

There are many other exceptions to the rulings of the referee in the reception and rejection of evidence, particularly to alleged violations of section 829 of the Code, but the conclusion at which I have arrived, as to the questions I have discussed, renders an examination of the other exceptions unnecessary, especially as many of them seems to be determined by the same principle governing those passed upon in this opinion.

For the errors herein referred to I think the judgment should be reversed, the referee discharged and a new trial granted, costs to abide the event.

Mayham, P. J., concurred.

PutNAM, J.:

I concur in result, because I have only had time to examine one of the reasons for reversal in the opinion, i. e., the reception of the evidence of defendant as to the indorsement, the time it was made, etc. I think, clearly, this was a personal transaction.

Judgment reversed, with costs; referee discharged and a new trial granted, costs to abide the event.