text:
    Harriet G. Cootey, Respondent, v. Julia A. Chapman and others, Executors, Appellants.
   Judgment reversed. Opinion by

Bartlett, J.


source: Caselaw Access Project

author: Barrett, J.

license: Public Domain

text:
    John Glenn, as Trustee, etc., Plaintiff, v. David J. Gorth and others, Defendants.
   — Exceptions sustained and new trial ordered, with costs to abide the event. Opinion by

Barrett, J.


author: Van Brunt, P. J.

text:
    John H. Riker, as Executor, Respondent, v. Sampson S. Leo and others, Appellants.
   Judgment affirmed, with costs. Opinion by

Van Brunt, P. J.


author: Van Brunt, I*. J.

text:
    Charles G. Pease, as Executor, Appellant, v. Clara M. Egan, Individually and as Executrix, etc., Respondent.
   —Judgment affirmed, with costs. Opinion by

Van Brunt, I*. J.


author: Van Brunt, P. J., and Barrett, J.

text:
    John Sullivan, Plaintiff, v. The Mayor, etc , of the City of New York, Defendant.
   — Exceptions overruled and plaintiff have judgment, with costs. If the defendant desires to carry the question to the Court of Appeals a certificate will be granted. Opinions by

Van Brunt, P. J., and Barrett, J.


text:
    Andrew Langdon and others, Respondents, v. New York, Lake Erie and Western Railway Company. Appellant.
   Order reversed to extent stated in opinion, and the motion to that, extent granted, with costs to the appellant of this appeal to abide the final event. Opinion by

Van Brunt, P. J.


text:
    James S. McQuillen, Appellant, v. The Real Estate Exchange and Auction Room (Limited), Respondent.
   — Judgment affirmed, with costs. Opinion by

Barrett, J.


author: PerCuriam.

text:
    In the Matter of the Dissolution of the Home Provident Safety Fund Association of New York.
   — The court is of the opinion that the parties to whom the receiver liad distributed the moneys under the order in question should return the same to him in order that, upon a full hearing of all the parties interested, such disposition may be made of the fund as to the court shall seem just and equitable; no costs to either party on this appeal. Opinion

PerCuriam.


author: Barnard, P. J.

text:
    Second Department,
    July Term, 1891.
    In the Matter of the Estate of Adolphus F. Ockershausen, Deceased.
   Order of surrogate reversed, with costs aud disbursements. Opinion by

Barnard, P. J.


author: Dykman, J.

text:
    Thomas Kitson, Respondent, v. Sarah F. Blake. Appellant.
   Order affirmed, with costs and disbursements. Opinion by

Dykman, J.


text:
    Thomas Kitson, Respondent, v. Frederick D. Blake, Appellant.
   Order affirmed, with costs and disbursements. Opinion by

Dykman, J.


author: Pratt, J.

text:
    Rafael Pentlarge, Respondent, v. George B. Eddy, Appellant.
   — Judgment and order denying new trial affirmed, with costs. Opinion by

Pratt, J.


text:
    Theophilus D. Olena v. Austin Huntington
   Judgment affirmed, with costs. Opinion by

Dykman, J.


text:
    Mary E. Sanger and others, Appellants, v. John C. Merritt, Respondent.
   Judgment affirmed, with costs. Opinion by

Pratt, J.


text:
    Matter of E. B. Long.
   — Motion for retaxation denied, with costs. Opinion by

Pratt, J.


author: Dykman, J.;

text:
    Matter of Citizens’ Water-works Company.
   Motion denied, with ton dollars costs. Opinion by

Dykman, J.;

Barnard, P. J., not sitting.


text:
    Andrew J. Dexter, Respondent, v. William Ivins and others, Appellants.
   — Judgment and order denying new trial affirmed, with costs. Opinion by

Barnard, P. J.


text:
    Lizzie Euggren, Respondent, v. Christian J. Prinz, Appellant.
   —Judgment of County Court affirmed, with costs. Opinion by

Barnard, P. J.


text:
    Herman Weiler v. Dominick P. Sweeney.
   Order affirmed for non service of papers on appeal, with costs.


author: Barnard. P. J.

text:
    Elie Weill and others, Appellants, v. Joseph Malone and another, Respondents.
   Order reversed, with costs and disbursements. Opinion by

Barnard. P. J.


text:
    The People of the State of New York, Respondent, v. Henry E. Kane and William Ford, Appellants.
   Conviction and judgment affirmed. Opinion by

Dykman, J.


author: Barnard, P. J.;

text:
    Bruce Van Tassell, Respondent, v. Manhattan Eye and Ear Hospital, Appellant.
   — Judgment and order denying new trial reversed and new trial granted, costs to abide event. Opinion by

Barnard, P. J.;

Dykman, J. not sitting.


author: Dykman, J. ;

text:
    John McBride, Respondent, v. The Orange County Railroad Company, Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Dykman, J. ;

Barnard. P. J., not sitting.


text:
    Harriet S. Rumsey and others, Respondents, v. The New York and New England Railroad Company, Appellant.
   Judgment affirmed, with costs. Opinion by

Dykman, J.;

Barnard, P. J., not sitting.


text:
    John Donnelly v. Edward J. Woolsey.
   Motion denied, with ten dollars costs. Opinion by

Barnard, P. J.


text:
    Leman C. Miner, Jr., Respondent, v. Bernhard Baron and another, Appellants.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Dykman, J.


text:
    James R. Wright, Respondent, v. Guillaume A. Reusens, Appellant.
   Judgment affirmed, with costs. Opinion by

Dykman, J.;

Barnard, P. J., not sitting.


text:
    James R. Wright v. Guillaume A. Reusens.
   — Order affirmed, with costs and disbursements. Opinion by

Barnard, P. J.


author: Pratt, J.;

text:
    In the Matter of the Application of William Shay, Appellant, for a Writ of Mandamus against the Trustees of the New York and Brooklyn Bridge, Respondents.
   — Order affirmed. with costs and disbursements. Opinion by

Pratt, J.;

Dykman, JM not sitting.


text:
    Michael Malone, Appellant, v. Gussie Knowlton, Respondent.
   — Judgment and order denying new trial affirmed, with costs. Opinion by

Pratt, J.;

Dykman, J., not sitting.


text:
    Oscar G. Brian, Respondent, v. Solomon Mead, Appellant.
   Judgment affirmed, with costs. Opinion by

Barnard, P. J.;

Dykman, J., not sitting.


author: Dyltman, J.;

text:
    Joseph H. Colyer v. Mary L. Williams.
   Judgment affirmed, with costs. Opinion by

Dyltman, J.;

Pratt, J., not sitting.


text:
    Eleanor J. Mattice, Respondent, v. Richaid B. Mattice and another, Appellants
   — Order affirmed for non-service of printed papers according to order.


text:
    Jeronemus S. Underhill, Respondent, v. Samuel Collins, Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Barnard, P. J.


text:
    Joseph Woermann, Respondent, v. Berend Baas, Appellant.
   Order affirmed, with costs. Opinion by

Barnard, P. J.;

Dykman, J., not sitting.


text:
    James E. Hartwick, Respondent, v. John McGinnis and another, Appellants.
   Judgment affirmed, with costs. Opinion by

Dykman, J.


text:
    Matter of John Petterson.
   Motion to remove John Petterson, as justice of the peace, denied. Opinion by

Barnard, P. J.


text:
    In the Matter of Estate of Seth Whitney.
   — Judgmentaffirmed, with costs. Opinion by

Barnard, P. J.


text:
    John E. Breichbeil, as Overseer, etc., Appellant, v. George H. Powles and another, Respondents.
   Order granting a new trial affirmed, without costs. Opinion by

Pratt, J.


text:
    Aaron B. Sares, Respondent, v. John W. Matthews, Appellant.
   — Order affirmed, with ten dollars costs and disbursements. Opinion by

Dykman, J.


text:
    Charles J. Quinby, Respondent, v John Claflin and others, Appellants.
   Order refusing costs and order refusing an allowance affirmed, with costs. Opinion by

Pratt, J.;

Dykman, J., not sitting.


text:
    The People of the State of New York ex rel. Charles V. Morgan, Respondent, v. The Board of Supervisors of Westchester County, Appellant.
   Order granting mandamus affirmed, with costs. Opinion by

Pratt, J.;

Dykman, J., not sitting.


text:
    The People of the State of New York ex rel. Charles V. Morgan, Respondent, v. The Board of Supervisors of Westchester County, Appellant.
   Judgment and order refusing to vacate or modify samo affirmed, with costs. Opinion by

Pratt, J.;

Dykman, J., not sitting.


text:
    Aloys Steffen, Respondent, v. Frank Schaefer and another, Appellants.
   — Order striking out certain defenses reversed, with costs and disbursements and motion denied, with costs. Opinion by

Dykman, J.


text:
    Matter of Petition of Francis Marvin, a Taxpayer. Matter of Petition of Richard S. Tuthill, a Taxpayer. Matter of Petition of Samuel D. Roberson, a Taxpayer.
   — Order substituting County Treasurer Murray in the place of his predecessor in office affirmed,with costs. Opinion by

Barnard, P. J.


text:
    Francis Larkin, Respondent, v. Barbara Brouty, Appellant.
   — Order denying resale ^reversed, and a resale ordered. Opinion by

Dykman, J.


author: Barnard, 3?. J.

text:
    In the Matter of Probate of Will of Julia Portingall.
   — Decree of surrogate affirmed, with costs. Opinion by

Barnard, 3?. J.


text:
    In the Matter of Estate of Eliza Stringer.
   Decree of surrogate reversed, with costs to abide event, and proceedings remitted. Opinion by

Barnard, P. J.;

Dykman, J., not sitting.


text:
    In the Matter of the Estate of Harry E. Dodge, Deceased.
   — Judgment and order confirming the report of the referee reversed and now trial granted, costs to abide event. Opinion by

Dykman, J.


text:
    In the Matter of the Estate of Cuthbert C. Gordon, Deceased.
   — Decree of surrogate affirmed, with costs. OpinjLou by

Dykman, J.


text:
    The Lawrenceville Cement Company, Appellant, v. S. Webber Parker and others, Respondents.
   — Judgment affirmed, with costs. Opinion by

Pratt, J.;

Dykman, J , not sitting.


author: Dykman. J.;

text:
    Thomas Doyle, Appellant, v The Rector, etc., of Trinity Church, in the city of New York, Respondent.
   — Judgment affirmed, with costs. Opinion by

Dykman. J.;

Pratt, J., dissenting.


text:
    In the Matter of the Application of the Kings County Elevated Railroad Company, Appellant, to Condemn Lands of Joseph Bryan, Respondent.
   — Award of commissioners and order confirming amended report affirmed, ■with costs and disbursements. Opinion by

Dykman, J.


text:
    In the Matter of the Application of the Kings County Elevated Railroad Company, Appellant, to Condemn Lands of Eliza J. Smith, Respondent.
   — Appraisal and report of commissioners and order confirming same affirmed, with ten dollars costs besides disbursements. Opinion by

Dykman, J.


author: Barnard, P. J ;

text:
    Robert McCulloch, Appellant, v. John Dobson and another, Respondents.
   — Judgment and order denying new trial affirmed, with costs; order granting extra allowance affirmed, with costs and disbursements. Opinion by

Barnard, P. J ;

Pratt, J., not sitting.


text:
    In the Matter of the Probate of the Will of James Stewart, Deceased.
   — Decree of surrogate reversed and issue to be framed as to the execution of the last will and codicils thereto, which were rejected by the surrogate and sent to a jury in Kings county; question of costs reserved until alter the hearing. Opinion by

Barnard, P. J.


text:
    The People of the State of New York ex rel. Charles J. Clinch v. Harrison S. Moore and others.
   — Proceedings of referees laying out road in Hempstead affirmed, with costs. Opinion by

Dykman, J.


text:
    Edgar Eighmie, Respondent, v. Jacob Townsend, Appellant.
   Judgment affirmed, with costs. Opinion by

Pratt, J.


text:
    Peter Shields, Executor, etc., Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Dykman, J.;

Barnard, P. J., not sitting.


text:
    Moses W. Redding, Respondent, v. Abbey L. Redding, Appellant.
   Order refusing to vacate decree affirmed, with costs and disbursements. Opinion by

Barnard, P. J.;

Pratt, J., not sitting.


text:
    Edward Haynes, Respondent, v. Edward Hatch, Appellant.
   Order denying motion to vacate order for examination affirmed, with costs and disbursements. Opinion by

Dykman, J. ;

Pratt, J., not sitting.


text:
    August C. Klupp, Appellant, v. United Ice Lines, Respondent.
   — Judgment affirmed, with costs. Opinion by

Pratt, J.;

Dykman, J., not sitting.


text:
    Charles G. Banks, Respondent, v. John T. Goodliffe and others, Appellants.
   — Judgments reversed and new trial granted, costs to abide event. Opinion by

Barnard, P. J.;

Dykman, J , not sitting.


text:
    John F. Becken, Respondent, v. William J. Weeks, Appellant.
   — Judgment and order denying new trial affirmed, with costs. Opinion by

Pratt, J.


text:
    Henry Fleer, Respondent, v. John Finken and another, as Administrators, Appellants
   — Report of referee and order confirming same affirmed, with costs. Opinion by

Dykman, J.


text:
    In the Matter of the Judicial Settlement of Myron Brownell and another, as Executors, etc
   —Decree of surrogate reversed, with costs. Opinion hy

Pratt, J.


author: Barnard, P J.

text:
    Mary S. Behrmann v. Metha Von Heyn.
   Judgment for plaintiff upon submitted case, without costs. Opinion by

Barnard, P J.


author: Pratt, J. ;

text:
    Bertha K. Doane, Respondent, v. Gustaf A. Anderson, Appellant
   — Judgment and order denying new trial affirmed, with costs. Opinion by

Pratt, J. ;

Barnard, P. J., not sitting.


author: •Pratt, J.

text:
    Andrew J. Shields and others, Respondents, v. Sigismund B. Wortmann and another, Appellants.
   — Order denying allowance reversed, with costs and disbursements, with leave to* renew motion at Special Term. Opinion by

•Pratt, J.


text:
    The People of the State of New York v. Louise J. Miller.
   Sentence modified. Opinion by

Dykman, J.


text:
    Walter J. Donohue, as Receiver, etc., Respondent, v. Edwin M. Jackson and another, Appellants.
   Judgment and order denying new trial-reversed and new trial granted, costs to abide-event. Opinion by

Barnard, P. J.


author: Piatt, J. ;

text:
    Oliver T. Nanny, Respondent, v. Amzi L. Fancher and others, Appellants.
   — Judgment affirmed, with costs. Opinion by

Piatt, J. ;

Barnard, P. J., not sitting.


text:
    Anna Mahoney, Administratrix, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
   — Judgment and order denying new trial affirmed, with costs. Opinion by

Pratt, J. ;

Barnard, P. J., not sitting.


text:
    Philip Goldberg, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
   — Judgment and order denying new trial affirmed, with costs. Opinion by

Barnard, P. J.


author: Djkman, J.;

text:
    Ruama Clark, Administratrix, Respondent, v. Susan M. Corwin and another, Executors, etc., Appellants.
   — Order awarding costs affiimod, with costs. Opinion by

Djkman, J.;

Barnard, P. J., not sitting.


text:
    The Warburton Hall Association, Appellant, v. Patrick J. Flannery, Respondent.
   — Order overruling demurrer to plaintiff’s complaint affirmed, with costs; and order denying to correct record affirmed, with out c osts. Opinion hy

Pratt, J.

      “£¿e.”


text:
    William J. Gaunt, Appellant, v. Ira P Taylor, Respondent.
   — Judgment or County Court reversed, and that of justice affirmed, with costs. Opinion by

Dykman, J.


text:
    Margarethe Renderle, Respondent, v. Elizabeth Finken and others, Appellants.
   — Judgment and order denying new trial affirmed, with costs. Opinion hy

Dykman, J.


author: Barnard, P. J.

text:
    Catharine Crowther, Respondent, v. The City of Yonkers, Appellant.
   — Judgment and order denying new trial affirmed, with costs. Opinion by

Barnard, P. J.


text:
    Levi P. Rose, Appellant, v. The City of Yonkers and others, Respondents.
   — Judgment affirmed, with costs. Opinion by

Dykman, J.;

Barnaid, P. J., not sitting.


text:
    In the Matter of the Accounts and Annual Statement of James Williams, County Treasurer of Orange County.
   — Order granted.


text:
    In the Matter of the Application of the Seaside and Brooklyn Bridge Elevated Railroad Company.
   — Order confirming report of commissioners granted.

Note. — The balance of the cases reported and all those decided at the July Term, of the Fourth Department, but not reported, will be found in (61 Hun) the next volume.


author: Mbrwin, J.:

text:
    WILLIAM W. GILMORE, Appellant and Respondent, v. EDWARD E. HAM, Appellant and Respondent.

      Partnership — when one partner paying a claim may recoser one-half thereof from, his copartner — when no accounting is necessary — an appeal isill not lie from a “ decision.”
    The complaint in an action alleged, and the answer did not deny, that,in 1864, the parties to the action formed an equal copartnership which borrowed money, in 1866, from one Sarah E. I-Iam, the defendant’s wife, upon the firm note; that, in 1869, the plaintiff departed from the State of New York and left in the hands of the defendant all the firm assets; that the defendant published a notice to the effect that he would settle all indebtedness existing in favor of and against the firm; that he did not pay said note; that, in 1886, Sarah E. Ham brought an action upon said note and recovered a judgment against the plaintiff, the whole of which the plaintiff was compelled to pay.
    Upon the trial it was shown that the firm assets far exceeded the firm debts.

      Held, that the plaintiff was entitled to recover one-lialf of said judgment, in favor of Sarah E. Ham, paid by him.
    That the defendant's claim that plaintiff could recover only after an accounting, an action for which was, as alleged, barred by lapse of time, was not tenable.
    That defendant having the assets with which to pay the debts of the firm, that it was his duty to do so; that he held said assets, which were sufficient for that purpose, in trust, and that under the circumstances neither the six nor the ton-years statute of limitations was a defense to plaintiff’s claim for a repa3Tment of one-half of said judgment.
    That such payment by the plaintiff must be regarded as an isolated transaction not involving, so far as the defendant was concerned, an examination of the partnership accounts.
    An appeal must be taken from the judgment in an action, and there is no authority sustaining- an appeal from a part of a decision, based “ upon the exceptions to such decision,” and such an appeal must be dismissed.
    Appeal by the defendant Edward E. Ilam from a judgment, entered in the clerk’s office of Onondaga county on the 2d day of January, 1891, in favor of the plaintiff for $1,000 damages, after a trial at the Onondaga Special Term ; also an appeal by the plaintiff William W. Gilmore “from that part of the decision of the court at Special Term wherein and whereby said court refuses to allow a judgment in favor of the plaintiff and against tbe defendant for the sum of $6,969.61, * * * which appeal is based upon tbe exceptions to such decision.”

      T. K. Fuller, for the plaintiff.

      Hunt di Moerson, for the defendant.
   Mbrwin, J.:

In tbe complaint in tliis case it is alleged that, on March 9, 1861, the plaintiff and defendant formed an equal copartnership in tbe clothing business under tbe firm name of Ham & Gilmore, and did business as such for several years thereafter; that, on the 19th of Hecember, 1866, tbe firm borrowed of Sarali E. Ham tbe sum of $675, giving therefor the firm note, payable one day after date, with use; that, in June, 1869, the plaintiff “left said firm and left the State of New York to reside elsewhere, and also left in the hands of the defendant, as his partner, the entire assets belonging to said firm of ITam & Gilmore; ” that, on or about July 5, 1869, the defendant published in the Syracuse Daily Standard a notice of dissolution, signed by him, stating that the firm had been dissolved, and that “ all the assets are in the hands of the undersigned, and he will settle all accounts with the firm and debts against it; ” that defendant failed and neglected “ to pay said partnership note of $675, or any part thereof or interest thereon, as by said notice of dissolution lie liad agreed to pay; ” that, on the 12th of May, 1886, Sarah E. Ham brought an action in the Supreme Court against the plaintiff and defendant as such copartners upon the said note, and ■on December 17, 1886, recovered judgment thereon against this plaintiff and defendant for $1,619.53, which, upon appeal -to the General Term, was reduced to $1,572.77; that the defendant, who is the husband of said Sarah, did not defend the action; that, on the 17th of Juno, 1890, this plaintiff paid the whole of said judgment, then amounting to $1,903.05 ; that there has never been an accounting between the plaintiff and defendant of their partnership affairs, and the same had never been adjusted between them, and that the defendant, though requested, had neglected and refused to account.

The allegations thus far stated are not denied by the answer. It is also alleged in the complaint, but denied in the answer, that this defendant wrongfully conspired with his wife to enable her to obtain her judgment against the firm ; that the assets of the firm left in the hands of the defendant in 1869 were, in value, $7,000 and upwards, and the firm did not owe, aside from the note, an amount exceeding $1,000, and that upon a just accounting the defendant would be indebted to plaintiff in at least the sum of $3,000 and interest over and above the half of the "judgment. As relief, the plaintiff demands an accounting, and that defendant pay him such sum as may be found due him, and also half of said judgment. The answer, besides the denials above referred to, sets up the six and ten-year statutes of limitation.

In addition to the admissions in the pleadings, it was found by the court that the assets of the firm, which passed into the hands of defendant in June, 1869, amounted to $7,000, and that the debts, aside from the note of Mrs. Ham and “ certain family indebtedness which has never been paid,” did not exceed $1,000; that it did not appear in proof what that other family indebtedness amounted to or whether it was now a valid claim ; that if an accounting had been had in June, 1869, there would have been due the plaintiff $2,500, and this amount the defendant has since then had belonging to plaintiff.

The appeal of the plaintiff is not from the judgment, but, as the notice states, from a part of the decision of the Special Term, and is based upon the exceptions to such decision.” The only exceptionsj in fact, taken by the plaintiff were to the refusal of the court to find certain requests. Upon an appeal from the judgment these would be reviewable. (Code, §§ 994, 1353.) There is no provision for appealing in such a case directly from the decision or from the refusal to find. The appeal must be taken from the final judgment (Code, § 1346) and the notice of appeal must so state. (Code, § 1300.) If the judgment is not appealed from it stands as correct. It follows that the attempted appeal of the plaintiff is ineffectual for any purpose and must be dismissed.

The only question, then, before us for review is upon thp appeal of the defendant. The plaintiff was allowed to recover one-half of the amount of the judgment against the firm. The claim of the defendant is that plaintiff could recover only after an accounting, and that an action for that purpose is barred by the statute of limitations. The general rule, undoubtedly, is that if one partner pays a debt against the firm he cannot, as long as the partnership accounts are unsettled, sue his copartner at law for contribution. For until an accounting was taken it could not be ascertained whether the plaintiff had or had not paid more than his proportion. (Gridley v. Dole, 4 N. Y., 492.) If, however, the cause of action is distinct from the partnership accounts and does' not involve their consideration, the action may be maintained. (Ferguson v. Baker, 116 N. Y., 257.)

In Gray v. Green (125 N. Y., 203) the plaintiff and defendant were partners, and the firm was dissolved by mutual consent, and the plaintiff was, by the agreement of dissolution, made the liquidating partner. More than ten years thereafter he brought an action against the defendant for an accounting, alleging in the complaint that the defendant, upon the dissolution, retained possession of firm assets exceeding in amount his partnership interest, and that such excess was due and payable to plaintiff. It was held that the action was barred by the statute; that the claim against defendant was an asset, and it was the duty of plaintiff, as the authorized agent of the partnership, to collect it, and that, therefore, the cause of action accrued immediately upon the dissolution. A distinction was taken between such a case and one where the action was brought against the liquidator. In the latter case it seems to have been conceded that an action would not lie until after the lapse of a reasonable time for the liquidating partner to perform the duties of his trust.

In Riddle v. Whitehill (135 U. S., 621) it was held that where partnership affairs are being wound up, in due course, without antagonism between the parties or cause for judicial interference, assets are being realized and debts extinguished, and no settlement has been made between the partners, the statute of limitations has not begun to run. That when the right of action accrues, between partners after a dissolution of' the partnership, so as to set the statute of limitations in motion, depends upon the circumstances of each case, and cannot be held as matter of law to arise at the date of dissolution, or to be carried back by relation to that date. In Hammond v. Hammond (20 Georgia, 556) it was held that the ■statute of limitations does not commence to run in favor of one partner against another, even after a dissolution of the partnership, .as long as there are debts from the partnership to be paid or debts due to it to be collected, nor, as long as either of these things is so, is a partner barred as against his copartner by the principles of stale demand.

In the present case all the assets of the concern were left with the defendant, and he apparently undertook to pay the debts — close up the business. He has not yet completed this undertaking. Having the assets, it was his duty to apply them to the payment ■of the debts. He held them in trust for that purpose and they were in amount sufficient. This trust was apjDarently never repudiated until the commencement of the action by Mrs. Ham in 1886. Hpon this basis it may be said with some force that the •statute is not available to defendant as a defense, so far, at least, as the claim of plaintiff upon the judgment is concerned.

The rule is well settled that if a partnership has been dissolved and the partnership accounts adjusted, and one partner is afterwards ■obliged to pay an outstanding claim not provided for, he may maintain an action in assumpsit against his copartner for the proportion of it which the latter ought to pay by reason of his joint liability. (Parsons on Part. [2d ed], 296, and note.) If, by reason of the lapse of time and the force of the statute of limitations, the dealings between the parties as they stood in 1869 are to be deemed •closed, the fact remains that an outstanding debt was not provided for, and that, too, by the fault of the defendant. Upon this debt there has been obtained in this court a judgment against the plaintiff and the defendant. It is so alleged in the complaint, and not denied in the answer. So that defendant is not in a position to deny the debt or the judgment. It is suggested, on his behalf, that lie was not served with process in that suit. It is not so found nor was there any request to so find. This judgment having been paid by the plaintiff, it should be deemed a single isolated transaction, not involving, so far as the defendant is concerned, an examination of the partnership accounts. For he, by his position as to those, prevents it. He has no ground for complaint. Under the circumstances of this case the judgment should be affirmed.

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

Appeal of plaintiff dismissed and judgment affirmed, without costs of appeal to either party.

       The other cases of this term which have been reported will be found in the previous volume (60 Hun).


author: Hardin, P. J.: Martin, J.: Misrwin, J.:

text:
    EDWARD LASHAWAY, Respondent, v. GEORGE W. TUCKER, Appellant.
    Execution— meal is exempt under the word “flour"- — -Code of Givil Procedure, sec. 1390, sub. 4.

    The Code of Civil Procedure (§ 1390), relative to property exempt from execution when owned by a householder, enumerates, in subdivision 4 thereof, “ all necessary meat, fish, flour and vegetables actually provided for family use.”

      Held, that meal was exempt from seizure under the word “flour.” (Merwin, J., dissenting upon this point.)
    Appeal by the defendant, George W. Tuclcer, from a judgment entered in the office of the cleric of Jefferson county on the 2d day of April, 1890, in favor of plaintiff, after a trial before the court and a jury at the Jefferson Circuit, at which a verdict was rendered in favor of the plaintiff for fifty-one dollars and seventy-eight cents, and also from an order denying the defendant’s motion for a new trial upon the minutes.
    The action was brought to recover for an alleged conversion of personal property arising out of a levy upon property claimed to be exempt from execution. Tlie plaintiff proved that the defendant in the present above-entitled, action, as plaintiff in an action, before a justice of the peace, recovered against said plaintiff in the above-entitled action a judgment under which the levy complained of was made. The complaint therein was “ for meal and flour sold and delivered to the defendant in said action (the plaintiff herein), at his request, in July and August, 1889, for his family use and support, upon which there remained due $8.18.”
    The defendant iu the above-entitled action moved for a nonsuit upon the ground, among others, that on the proof as it stands, such proof as there is, that any levy was made, is proof that the levy was made upon a judgment for exempt property, and as to that exempt property may be taken, and no right of claim to exemption can be founded upon the same. That refers to anything that is claimed here as property belonging to the plaintiff.

      Ilcmnibal Smith, for the appellant.

      J. Zansiuy, for the respondent.
   Hardin, P. J.:

In the course of the trial the court held that the word “flour” did not cover meal, and refused to submit a question in that regard to the jury. Proper exceptions were taken to the rulings and to the refusal. I am inclined to the opinion that an error was committed.

I think the amount of the verdict is dubious. I favor a reversal of the order and judgment.

Martin, J.:

I think flour includes meal, and, under statute, meal for family use is exempt, hence I concur.

Misrwin, J.:

In view of other provisions of the Revised Statutes (pt. 1, ch. 17, tit. 2, art. 1), I think flour and meal are different articles; and the word “ flour ” in the exemption law was not designed to include meal; so on this I think the circuit right, but the verdict is larger than the evidence warrants, so I assent to reversal.

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


author: IMerwin, J.:

text:
    ALICE PADDOCK, Respondent, v. THE CITY OF SYRACUSE, Appellant.

      Municipal corporations — notice before bringing an action for an injury resulting from a defective street or sidewalk — what is an insufficient statement of the “ cause ” of the injury.

    'The charter of the city of Syracuse, as amended by chapter 449, Laws of 1888, required, as a preliminary to the bringing of any action against it for an injury resulting from a defect in a street or sidewalk, that a notice be served on its mayor or city clerk, stating, among other things, the “cause of such injury or damage.”
    Such a notice, given on behalf of a party thus injured, stated that the “injuries resulted from a defective and dangerous sidewalk; * * * that said defective and dangerous sidewalk and said injuries were caused by the negligence of ” said city.
    Held, that said notice was not a sufficient statement of the cause of the injury, and that the statute had not been complied with.
    Appeal by the defendant, the City of Syracuse, from a judgment of the Onondaga Circuit Court, elitered in the office of the clerk of said county on the 29th day of November, 1890, in favor of plaintiff, after a trial in said court before the court and a jury, at which a verdict was rendered in favor of the plaintiff for $500; also from an order, entered in said clerk’s office on the 22d day of November, 1890, denying the defendant’s motion for a new trial upon the minutes.
    The action was brought to recover damages for personal injuries occasioned by the fall of the plaintiff upon a sidewalk upon James street, in the city of Syracuse, on the 28th of January, 1890.

      O hartes E. Ida, for the appellant.

      MacGregor dbWandell, for the respondent.
   IMerwin, J.:

The main question in this case is, whether the plaintiff, before the commencement of this action, complied with section 250 of the charter of the city of Syracuse, as amended by chapter 4A9 of the Laws of 1888. That section, as amended, is as follows:

“ § 250. The city of Syracuse shall not be liable in a civil action for any injury or damage resulting from any defect or improper condition in or upon any street or sidewalk, unless written notice, specifying tlie time, place and cause of such injury or damage shall be served on the mayor or city clerk within six months after the injury or damage was received, nor unless an action- shall, be commenced within one year after the service of such notice. No action to recover or enforce any such claim against the .city shall be brought until the expiration of forty days after the claim shall have been presented in the manner and form above provided.”

On or prior to the 10th of March, 1890, the plaintiff served upon the proper officers a written notice stating ‘‘ that on the 28th day of January, 1890, I sustained severe personal injuries by which my right arm was broken in three places, and I was otherwise injured and endured great pain and suffering, and was incapacitated from the performance of manual labor, and am still suffering therefrom, which injuries resulted from a defective and dangerous sidewalk, situated upon the south side of James street,- between Warren and Lock streets, just west of the canal bridge. That said defective and dangerous sidewalk and said injuries were caused by the negligence of the city of Syracuse, its agents, officers, servants and employees; that I intend to commence an action against the said city of Syracuse to recover the sum of one thousand dollars damages for the said injuries.”

The claim of the appellant is, that the cause of the injury or damage is not sufficiently stated. The statute requires not only that the time and place must be stated, but also the cause. The notice states that the “ injuries resulted from a defective and dangerous sidewalk,” and were caused by the negligence of the city.” It does not state how the injury occurred, or that plaintiff fell on the ■sidewalk.

The case of Noonan v. City of Lawrence (130 Mass., 161) is quite similar to the present. There the Requirement of the statute was that notice should, in a certain way, be given u of the time, place and cause of the said injury.” The notice, in fact, given, after stating that the plaintiff fell upon a certain sidewalk at a certain time, stated “ that the cause of her fall and consequent injury was the defective and dangerous condition of the way, which the city negligently permitted to be out of repair, though bound by law to keep it in repair.” Tliis was lield to be insufficient, tbe court saying : " To state that the injury was caused by ( the defective and dangerous condition of the way, which the city negligently permitted to be out of repair,5 is not notice of the cause of the injury ; it is simply stating the general ground upon which a city, in every case, is liable for injuries sustained upon the highway; but it states no cause for this particular injury. It is equally consistent with an excavation in the way, an obstruction upon the way, an original maleonstruction of the way, a worn, uneven and irregular condition of tbe surface of the earth, an accumulation of snow or ice, or both, or any of the many varieties of defect which may exist in a way. The notice must, to be sufficient, be so reasonably specific as to time, place and cause, as to be of substantial assistance to the-proper authorities in investigating the question of their liability.” The same principle was applied in Miles v. Lynn (130 Mass., 398), it being said that." the statute is intended to secure to the city or town, to which the notice is given, such information as to the exact locality, and as to the nature of the alleged defect, that it will be able to judge for itself whether any cause of action really exists, and to repair the defect, if a real one, before further injury results from it.” In Spellman v. Chicopee (131 Mass., 443), a notice, which stated as the cause, that the walk was out of repair and was coated with ice and was slippery, was held to be sufficient, it being, however, said that it was not sufficient to assign as the cause that the way was defective, or in a dangerous condition, or out of repair. In Cronin v. Boston (135 Mass., 110), the cause alleged in the notice was, that the sidewalk was “rough, hobbly and slippery.” It appeared in the case that the defect consisted of an accumulation of ice on the sidewalk. The notice was held to be insufficient.

We have examined the cases cited by the counsel for the plaintiff but find none that pass upon the sufficiency of a notice like the present one, so far as the specification of the cause of injury is concerned.

By section 250, above referred to, before the amendment in 1888, it was provided that the notice should specify “ the time and place where the same was received.” The section as amended required the cause to be also specified and provided that no action should be-commenced until forty days after the service -of such a notice Assuming the time and place to have been properly stated, the-city was entitled to further information. The cause of the injury or damage must be specified. To> say that the cause of the injury was the negligence of the city, or was a defective and dangerous sidewalk, only stated a conclusion.

The statute undoubtedly called for a statement of what produced the injury or damage, a specification of the defect or improper condition complained of, so that the city officials, within the time given them before a suit should be commenced, could ascertain whether the allegations were true, and whether they should settle or defend. The case before us shows no difficulty in the way of plaintiff describing the alleged defect.

The city was entitled to the benefit of the statute, and a substantial compliance by plaintiff with its provisions was a condition precedent to the right of plaintiff to bring the action.

We think the principle laid down in the Massachusetts cases is a reasonable one and should be followed. We, therefore, hold that the notice was insufficient. It follows that the judgment must be reversed.

Martin, J., concurred.

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


author: Merwin, J.: Martin, J.:

text:
    ELLA LAROW, as Administratrix of GEORGE W. LAROW, Deceased, Respondent, v. THE NEW YORK, LAKE ERIE AND WESTERN RAILROAD COMPANY, Appellant.

      Negligence — switching cars on a railroad — right of the jury to decide whether a ■railroad company should.hare adopted a specific rule.

    A brakeman was engaged in trying to couple cars on a switch, when an engine upon one end of such switch drove hack some other cars which struck the ears which the brakeman was coupling, in consequence of which the brakeman was killed. Certain rules for the government of the freight-yard had been made by the railroad corporation, but none of them were applicable to such a case.
    The court in its charge left to the jury the question whether it was reasonable to require the railroad company to promulgate a rule forbidding entrance on a. switch when another engine and train, or engine and ears, were upon it, unless a signal were given or notice sent to the employees of that train; and further said that if the jury found such a rule to be reasonable they might find the railroad corporation negligent.

      J-Ield, that as it did not appear that such a rule was in force upon other railroads; and as it was not shown what the practical effect of such a rule, had it existed, would have been, it was error to permit the jury to decide whether such a specific rule should have been promulgated.
    That the question in such a case is not whether a specific rule should have been provided, but whether, in view of its existence or its non-existence, the train was moved with prudence or with negligence.
    Appeal by the defendant, the New York, Lake Erie and Western Railroad Company, from a judgment, entered in the office of the clerk of the county of Chemung on the 23d day of January, 1888, in favor of the plaintiff, after a trial at the Chemung Circuit before the court and a jury, at which a verdict was rendered in favor of the plaintiff for $5,000; and also from an order, entered in said clerk’s office on the 13th day of November, 1888, denying the defendant’s motion for a new trial upon the minutes of the justice.

      E. F. Babcoch, for the appellant.

      Jacob Schwartz, for the respondent.
   Merwin, J.:

In this action it is claimed by the plaintiff that, on the 16th of March, 1887, her husband, George W. Larow, was killed by reason of the negligence of defendant, at its freight-yard at Hornellsville, without any negligence on his part contributing to the result. Larow was a brakeman in the employ of defendant, and had been since November 9, 1886. Upon the afternoon of the day in question, Larow was one of the crew of a freight train that was being made up in-the yard. Eor the purpose of taking out freight cars for the train, the engine had entered upon switch track No. 5, and coupled on to twelve cars, and was going in for five more that were standing on that track. Larow was a middle-man, and in the course of his duty was sent to do the coupling of the five cars. Eor this purpose, the engine backed up the cars already coupled toward the five cars, Larow running alongside on foot. He gave a signal to stop, but the moving cars struck the stationary ones, Larow being on the outside, and the coupling was not made. Larow signalled the engineer to go ahead, which he did, leaving a space of about thirty feet between the end of the twelve cars and the five. Into this space Larow was seen to go and was not again seen alive. After about three minutes, as one of plaintiffs witnesses testifies, or about four minutes, as another of plaintiff’s witnesses testifies, the switch engine from the other end of the yard pushed down some cars, striking the five above referred to and pushed them on to the twelve, and then pushed the whole train ahead twelve or fifteen car lengths. No signal was given of the approach of the switch engine. Shortly after this another brakeman, of the train being made up, discovered that the twelve and the five were not coupled together, and upon examination discovered that the coupling link at the eud of the last of the twelve cars was driven in tight into the draw-head. A temporary coupling was made and tire five cars drawn out. Larow was then discovered on the track dead. Apparently, he had been hit between the cars, as the five upon being pushed down by the switch engine collided with the twelve.

"Opon the trial the only ground of negligence claimed by plaintiff was that the defendant had failed to make and promulgate rules for the reasonable protection of its employees in the Ilornellsville yards.

The court, in its charge, among other things, left it to the jury to determine whether it was reasonable “ to require the railroad company to promulgate a rule forbidding entrance on a switch when another engine and train is upon it, or another engine and cars are upon it, unless a signal is given, or notice sent to the employees of that train,” and if they found such a rule to be reasonable, they might find the company negligent. This is claimed to be error. Exception was properly taken. There are cases that hold it error to submit to a jury the question whether a railroad company ought to have left a flag-man at a particular point. (Houghkirk v. President, etc., D. and H. C. Co., 92 N. Y., 220; McGrath v. N. Y. C. and H. R. R. Co., 63 id., 528; Grippen v. N. Y. Central R. R. Co., 40 id., 41.) The query is whether this principle does not apply to the present question.

The defendant had adopted certain rules as to the management of its freight-yard, but liad adopted none covering the specific subject or condition that existed here. It was not shown- that any ■other company had adopted such a rule, and what its practical working might be was a matter of speculation. There was no evidence to instruct the jury on that question.

In Abel v. President, etc., Delaware and Hudson Canal Company (103 N. Y., 581), the plaintiffs testator, a car repairer in the employ of defendant, was under one of its cars standing on a side track engaged in making repairs. Another car was carelessly hacked against it by other employees, causing his death. It appeared that other railroad companies liad adopted a rule efficient for protection to a car repairer in such a case, and that no similar rule applicable to such a case had been adopted by defendant. A nonsuit was granted. This was held to be error, the court saying that the facts should have been submitted to the jury; that it could not be said, as matter of law, that the rules of defendant were proper and sufficient for the protection of its repairmen, and tliai it should not have taken greater precautions, hy rules or otherwise, for their safety.

Tn Ford v. The Lake Shore and Michigan Southern Railroad Compcmy (36 N. Y. St. Rep., 494; 124 N. Y., 493), the husband of the plaintiff was a switchman in defendant’s employ, and was injured by timbers falling from a passing car. Defendant’s only rule as to the loading of lumber required its employees to attend to the loading of all freight, whether loaded by station men or by shippers, to see that it is safely stored and so that it cannot fall off the cars.” It was shown that on other roads a verbal rule existed specifically for the security of lumber loaded on cars. The jury b.y special finding found that the defendant did not provide a proper and sufficient rule with respect to the loading of lumber. There was no other ground for negligence against the defendant. A judgment for plaintiff was sustained.

It may he that the principle of the Abel and Ford cases would call for the submission to the jury of the question whether the defendant, in the making and promulgation of rules for the management of cars in its yard, exercised reasonable care. This, however, would not authorize the submission of the question whether some specific rule should have been adopted. The same objection would apply as in the flag-man cases above referred to. In the Houglikirk case it is said : “ The question never is whether there should have been a flagman, or one ought to have been stationed at the crossing, but whether, in view of his presence or absence, the train was moved with prudence or negligence.” In view of the rule in those cases, the charge here was erroneous. Upon this ground there must be a reversal.

Hakdin, P. J., concurred.

Martin, J.:

While the doctrine of the case of Berrigan v. New York, Lake Erie cmd Western Railroad Company (31 N. Y. St. Rep., 414) seems to be somewhat adverse to the conclusion reached by us in this case, still, I think our conclusion correct.

The only negligence claimed was, that the defendant omitted to make and promulgate a rule to the effect that an engine should not enter upon a siding upon which there was another engine and cars without giving a signal or sending notice to the employees of that train. The court submitted to the jury the question whether such a rule was reasonable, and instructed it that if it found that it was reasonable, fair and just, it might find that the defendant had omitted a reasonable rule, aud was, therefore, negligent, unless the rules already established by the defendant substantially provided for such a case. The court well remarked that there was no evidence in the case that any other company had promulgated any such rule, and none. to show whether such a rule could be practically followed in doing the work to be performed in the defendant’s yard where tne accident occurred. The court then added: “ Yon must use your best judgment, and, we assume, it is better than mine, hence, I have left it to you as a question of fact.”

The effect of this instruction was to submit to the jury the question whether a certain rule should have been made and promulgated by the defendant without any proof whatever as to its practicability, or that any similar rule had ever been adopted or followed by any other railroad company in the management of the engines and cars in its yards. In other words, the plaintiff was permitted to suggest a rule for the management of the business of railroads, which, so far as appears from the evidence, was not shown to be either in use or practicable, aud the court .then submitted the question of its propriety to the jury, that it might, by guess or speculation, determine whether such a rule was proper, aud, if so, might find, that the defendant was negligent in not having adopted and promulgated it.

It has been held that it is the duty of a railroad company to make and promulgate rules which, if faithfully observed, will give reasonable protection to its employees. (Abel v. President, etc., D and H. C. Co, 103 N. Y., 581.) This rule should not, I think, be extended so as to enable a jury to say what rules should be adopted and promulgated by a railroad company for the piotection of its employees, without any evidence as to their propriety or practicability.

If the principle involved in this case is to be upheld, it would seem to follow that in every case of air injury to an employee ingenious counsel would be able to invent some rule and claim that it should have been adopted and promulgated by the company, and thus present a question as to the defendant’s negligence. The effect of such a rule, when taken in connection with the uniform tendency of juries to find against railroad companies, would be practically to make such companies insurers of their employees. I am of the opinion that before a railroad company can be found guilty of negligence in not making and promulgating any certain rule, it must at least be .shown that the rule is practicable, proper, and, if observed, would give reasonable protection to its employees.

I think the court erred in denying the defendant’s motion for a nonsuit, and in submitting the question of negligence to the jury, and that, for such error, the judgment and order should be reversed.

Hence I concur in the result reached by Merwin, J., in his opinion in this case.

Judgment and order reversed upon the exceptions, and anew trial ordered, with costs to abide the event.


author: Martin, J.:

text:
    PHILIP J. BAKER, Respondent, v. JOHN R. THOMAS and Another, Appellants, Impleaded with Others, Defendants.

      Recording act — a release of a part of mortgaged premises is a “ comeyunce” — a purchaser “ in good faith” — what acts of possession and occupation constitute, notice.

    A release of a part of mortgaged premises is a “ conveyance” within the meaning of the recording act (R. S., part 2, chap. 3, § 38) defining the term “ conveyance.”' A person purchased a piece of pasture land which was thereupon released from the lien of a mortgage then existing thereon. There were no buildings on the land at the time, and he erected none after his purchase, but simply fenced the land and made no other changes thereon.
    In an action between such purchaser and an assignee of said mortgage, whose assignment was executed five years subsequent to, but was recorded before, the deed and release to said purchaser, it appeared that said assignee lived at a distance of fifteen miles from the premises and it was not shown that he had any knowledge of their situation or occupation.

      Held, that the acts of the purchaser were not sufficient to constitute notice to the assignee.
    That the assignee was a purchaser “in good faith,” within the meaning of the recording act (R. S., part 2, chap. 3, § 1) prescribing the effect of a failure to record a conveyance.
    Appeal by the .defendants, John R. Thomas and Clinton R. Thomas, from a judgment entered in the office of the cleric of the county of Oneida on the 25th day of July, 1890, adjudging, among other things, that the plaintiff was entitled to a judgment of foreclosure and sale of eight acres of the premises described in the complaint as against said defendants, after a trial at the Oneida Special Term.

      Risley (& Perry, for the appellants.

      P. G. J. De AngeUs, for the respondent.
   Martin, J.:

On the 1st day of January, 18Y5, James Mitchell was the owner of about two hundred and sixty-eight acres of land, being the premises described in the complaint. On that day he executed a mortgage thereon, in which his wife joined, to Samuel Douglas to secure the payment of $4,000 January 1,1818, with annual interest. Tlie mortgagee having died, the executor of his estate, on J une 8, 1876, assigned the mortgage to Emily Douglas, which assignment was recorded on that day.

January 1, 1878, Mitchell and wife, by warranty deed, conveyed to the appellants eight acres of the premises mortgaged. 'On the same day Emily Douglas, who was then the owner of the bond and mortgage, executed and delivered a release of the eight acres thus conveyed from the lien of her mortgage. January 3, 1883, Emily Douglas assigned to the plaintiff a portion of the bond and mortgage, and on Eebruaiy thirteenth of the same year assigned to him the remainder thereof. The assignments of the bond and mortgage to the plaintiff were recorded on the days on which they were made, while the deed given by the mortgagor to the appellants, and the release of the portion of the premises so conveyed, given by the then owner of the bond and mortgage, were not recorded until February 25, 1886.

The eight acres conveyed to the appellants consisted of a strip of land about nine rods in width, extending across the farm from north to south. It was pasture land, upon which there were no buildings, and none were erected thereon by the appellants, but immediately after they purchased they fenced the land, presumably by removing the fence about nine rods from its former location, and used it as a pasture. The plaintiff resided fifteen miles distant, and was not shown to have had any knowledge of the situation of the premises or how they were occupied.

The trial court held that the plaintiff purchased the bond and mortgage in good faith and for a valuable consideration; that lit •thereby became a subsequent purchaser within the meaning of the recording act, and was entitled to a judgment of foreclosure and ■sale, and to sell the eight acres purchased by the appellants, if necessary, to pay the mortgage debt and costs. The correctness of this •decision is challenged by the appellants upon the grounds: (1) That the plaintiff took title to the mortgage in suit, subject to all the 'equities existing against it, and acquired no greater rights than were possessed by his assignor. (2) That the release of a part of the mortgaged premises given to the appellants was not a conveyance ” within the recording act; and (3) That the plaintiff was not a purchaser in good faith, as the appellants were in open and visible possession of the eight acres in question, which was constructive notice to them of the appellants’ title.

The question involved in this case is not, as the appellants’ counsel seems to suppose, what rights the plaintiff acquired by virtue of his assignment, as it is clear that, independent of the recording act, he acquired no greater rights than his assignor possessed. But the question here is what rights did he acquire, if any, by virtue of the recording act, as a subsequent purchaser whose assignment was recorded prior to the recording of the appellants’ release. In other words, the plaintiff’s superior rights, if he has any, were acquired not under his contract alone, but by virtue of the rights given by the recording act to a subsequent purchaser whose conveyance is first recorded. Indeed, there is no pretense that, independent of the recording act, the plaintiff acquired any right to sell the eight acres in question. Hence the only question in the case relates to the application of that act.

Therefore, the next question presented is whether a release of a part of mortgaged premises is a conveyance within the provisions of the recording act.

The term “ conveyance ” is declared by that statute “ to embrace every instrument in writing, by which any estate or interest in real estate is created, aliened, mortgaged or assigned ; or by which the • title to any real estate may be affected in law or equity.” * * * (Revised Statutes [8th ed.], 2475, § 38.)

In Bacon v. Van Schoonhoven (87 N. Y., 446), it was held that a satisfactiou-pieee of a mortgage was a “ conveyance ” within the meaning of the recording act. In delivering the opinion in that case Rapallo, J., said: “It (a satisfaction-piiece), is equivalent to a release of the mortgaged premises. Instruments creating liens by way of mortgage, being expiressly declared to be embraced, for the. p>urp>oses of this act, in the term £ conveyance ’ it is difficult to conceive any reason why instruments discharging such liens should not be included in the general definition of ‘instruments by which any estate or interest in .land may be affected in law or equity.’ ” In Brewster v Carnes (103 N. Y., 562), it was said: “It is a well-established principile of law that the assignment of a mortgage and the satisfaction of the same are conveyances within the meaning of the recording act. (Van Keuren v. Corkins, 66 N. Y., 77; West- brook v. Gleason, 79 id., 23, 25; Decker v. Boice, 83 id., 215; Bacon v. Van Schoonhoven, 87 id., 446.) ”

In Mutual Life Insurance Company v. Wilcox (55 How. Pr., 43) it was held that a release of a part of mortgaged premises was a “ conveyance ” within the recording act. (See, also, St. John v. Spalding, 1 T & C., 483, and opinion of Yann, J., in Frear v. Sweet, 118 N. Y., 463.) The doctrine of the cases cited leads us to the conclusion that the court properly held that the release to the appellants of a part of the mortgaged premises was a “conveyance” within the meaning of the recording act, and that the appellants’ release was void as to the plaintiff’s assignment, which was first recorded, if he was a purchaser in good faith and for a valuable consideration.

This leaves for consideration the question whether the plaintiff was a subsequent purchaser in good faith and for a valuable consideration. It is well settled that as an assignee of the mortgage the plaintiff became a purchaser under the recording act, and there is no claim that such subsequent purchase was not for a valuable consideration and in good faith, unless the plaintiff had constructive notice of the appellants’ title by reason of their possession of the premises. As we have already seen, the only occupancy of the premises was, that the fence was changed and the premises were used by the appellants as pasture land, there being no building or other improvements thereon. "Whether this was stiff!cient notice to impeach the plaintiff’s good faith, and thus relieve the appellants from the operation of the recording act, is the only question we need consider.

In Brown v. Volkening (64 N. Y., 76, 82) Allen, J.s in delivering the opinion of the court, said : “ The statute makes void a conveyance not recorded only as against a subsequent purchaser in good faith and for a valuable consideration. (1R. S., 756, § 1.) Actual notice of a prior unrecorded conveyance, or of any title, legal or equitable, to the premises, or knowledge and notice of any facts which should put a prudent man upon inquiry, impeaches the good faith of the subsequent purchaser. There should be proof of actual notice of prior title, or prior equities, or circumstances tending to prove such prior rights, which affect -the conscience of the subsequent purchaser. Actual notice of itself impeaches the subsequent conveyance. Proof of circumstances, short of actual notice, which should put a prudent man upon inquiry, authorizes the court or jury to infer and find actual notice. The character of the possession which is sufficient to put a person upon inquiry, and which will be equivalent to actual notice of rights or equities in persons other than those who have a title upon record, is very well established by an unbroken current of authority. The possession and occupation must be actual, open and visible; it must not be equivocal, ■occasional, or for a special or temporary purpose; neither must it be consistent with the title of the ajiparent owner by the record.” After examining several cases, he continues: “ I have met with no case in which anything short of actual, visible and, as is said in some cases, notorious possession of premises, has been held constructive notice of title in a claimant. (See Chesterman v. Gardner, 5 Johns. Ch., 29; Grimstone v. Carter, 3 Paige, 421; Cook, v. Travis, 20 N. Y., 400; Webster v. Van Steenbergh, 46 Barb., 212.) All the cases agree that notice will not be imputed to a purchaser except where it is a reasonable and just inference from the visible facts. Neither will the principles of constructive notice apply to unimproved lands, nor to cases where the possession is ambiguous or liable to be misunderstood. (Patten v. Moore, 32 N. H., 382.) It should not apply within the same principle to an uninhabited and unfinished dwelling-house; there must be a possession, actual and distinct, and manifested by such acts of ownership as would naturally be observed and known by others, The using of lands for pasturage or for cutting of timber is not such an occupancy as will charge a purchaser or incumbrancer with notice. (Coleman v. Barklew, 3 Dutch., 357; McMechan v. Griffing, 3 Pick., 149; Holmes v. Stout, 10 N. J. Eq., 419; see, also, Fassett v. Smith, 23 N. Y., 252.)” See, also, Page v. Waring 76 N. Y., 463) and Pope v. Allen (90 N. Y., 298).

In Merritt v. Northern Railroad Company (12 Barb., 605), it was held that the location and the staking out of a line of a railroad and setting posts for the fence, was not such possession as amounted to notice to purchasers of a grant of a right of way to the company. In Trustees of Union College v. Wheeler (59 Barb., 585, 617), it was said by Mullin, P. J., who delivered the opinion in that ■case, that “ the occupancy that is sufficient to charge a subsequent purchaser or incumbrancer with notice of the occupant’s rights, must be open and visible, and he must actually improve the premises. .Fencing, pasturing or cutting timber is not such an occupancy as will charge a purchaser or incumbrancer with notice. (McMechan v. Griffing, 3 Pick., 149, and cases cited; Cook v. Travis, 22 Barb., 338; Troup v. Hurlbut, 10 Barb., 354; 4 Kent’s Com., 179, and notes.) ”

“ The protection furnished by these laws (the recording act) should not be taken away except on clear juoof of a want of good faith in the party claiming their protection, and a clear right in him who seeks to establish notice by means of possession. The circumstances must be such that a prudent man would be put upon inquiry, and would he chargeable with bad faith if lie did not inquire.” (1 Jones on Mortgages, § 601.)

We are of the opinion that the possession of the premises by the-appellants was not of such a character as to constitute a notice to the plaintiff of the rights of the appellants in the premises, and that the court properly held that the plaintiff was a subsequent purchaser in good faith and for a valuable consideration.

The case of Phelan v. Brady (119 N. Y., 587), is not in conflict with the authorities cited, but is clearly distinguishable from them., as in that case the possession was actual, open, visible, notorious, unequivocal, and such as manifested acts of ownership that would naturally be observed and known to others. Nor does the case of Frear v. Sweet (118 N. Y., 454), in any way aid the appellants, as it was held in that case that the premises sought to be charged were never included in the mortgage or subjected to the lien thereof, and, therefore, the recording act did not create a lien, and was in no way involved.

It follows that the judgment should be affirmed.

Hardin, P. J., and Merwin, J., concurred.

Judgment affirmed, with costs.


author: Martin, P. J.:

text:
    WILLIAM DUFFUS, Appellant and Respondent, v. ELI T. BANGS and Another, Respondents and Appellants.

      Assessment of damages in an action for conversion —j adgment absolute for plaintiff vn, the Gourt of Appeals after a nonsuit at circuit — not conclusive as to damages.

    Upon the trial of an action for the conversion of personal property the plaintiff was nonsuited, a new trial was granted at the General Term, and upon an appeal by the defendants to the Court of Appeals judgment absolute was rendered for the plaintiff. The case then went to the circuit for an assessment of damages, where the defendants offered to prove that the property converted was of much less value than the amount testified to by the plaintiff's witness, and also offeretL to impeach said witness. Testimony offered for this purpose was rejected.

      Held, tint such evidence was improperly rejected.
    That in such an action the allegation of value is not traversable, and hence that the amount of tiro damages was in no manner settled by the judgment of the Court of Appeals.
    That tlie position of the plaintiff was similar to that of a plaintiff in the case of an. assessment of damages upon a default in answering, where the defendant may-call and examine witnesses and prove proper mitigating circumstances.
    Appeals by the defendants, Eli T. Bangs and Jane E. Bangs, from a judgment entered in the clerk’s office of Onondaga county on tlie 21st day of February, 1891, in favor of the plaintiff for $1,881.59, damages and costs uuon an assessment of damages, had before the court and a jury at the Onondaga Circuit, and also from an order entered in said clerk’s office on tire 19th day of February, 1891, denying the defendants’ motion to vacate said assessment of damages and for a reassessment, with notice of an intention to bring up for review upon said appeal the rulings of the trial justice upon said assessment.
    Also an appeal by tlie plaintiff William Dnffus from so much of an order, entered in said clerk’s office on the 5th day of January, 1891, upon said assessment, and from so much of said judgment above set ¿forth as refuses and denies to tlie plaintiff the right to recover interest on the demand in said action, or to allow the plaintiff interest on the amount of the value of the property converted.

      Walter B. MaeGregor, for tlie plaintiff.

      T. K. Fuller, for the defendants.
   Martin, P. J.:

On the trial of this ease the plaintiff was nonsuited. From the judgment entered thereon he appealed to the General Term, where the judgment was reversed and a new trial granted. The defendants thereupon appealed from the decision of the General Term to the Court of Appeals, stipulating that if the order granting a new trial was affirmed, judgment absolute should be rendered against them. The decision of the General Term was affirmed and judgment absolute rendered on such stipulation. The case was then xemitted to this court, and the judgment of the Court of' Appeals made the judgment of the Supreme Court.

The action was for the conversion of personal property. An assessment of damages was had at circuit before a justice of this court and a jury. On the hearing the plaintiff read -the testimony of one witness as to the value of the property in question, and rested. The defendants then offered to prove that the property was of much less value than testified to by the plaintiff’s witness, and also to impeach such witness. This evidence was objected to and excluded, the court holding that the plaintiff was entitled to recover $1,300, the alleged value of the property, as the testimony offered by him showed that it exceeded that sum. To this ruling the defendants excepted.

Subsequently a motion was made by the defendants to vacate the assessment of damages. On this motion the court held that the defendants were not entitled to introduce any evidence of the value of the property in question, but could only cross-examine witnesses produced by the plaintiff, and, therefore, denied the motion. The correctness of these rulings is challenged by the appellants, and presents the only question we are called upon to decide in this case.

It must be conceded, at the outset, that the judgment against the defendants determined all the issues in the case adversely to them and established the plaintiff’s right of recovery herein. But we think it did not entitle the plaintiff to the amount of damages alleged, nor to such as might be testified to by such witnesses a&. he niight call, regardless of their credibility.

In an action for conversion the allegation of value is not a traversable one, and even on default, where all the traversable averments are taken as admitted, the plaintiff must prove his damages if he seeks to recover more than a nominal amount. (Connoss v. Meir, 2 E. D. Smith, 314, and authorities cited in opinion; Raymond v. Traffarn, 12 Abb. Pr., 52; McKensie v. Farrell, 4 Bosw., 192, 202; De Graaf v. Wyckoff, 13 Daly, 366 ; Starr v. Cragin, 24 Hun, 177.)

As the allegation of damages in this case was not an issuable averment, it follows that the amount which the plaintiff was entitled to recover iu excess of nominal damages was in no wise settled by the judgment awarded by the Court of Appeals. If the plaintiff was entitled to recover more, an assessment of damages was required to determine the amount.

It is not claimed that the plaintiff occupied any better or different position than he would upon an assessment of damages before a sheriff’s jury, or before a court and jury at circuit, where there had been a default in answering. (Thompson v. Lumley, 7 Daly, 74.) The rule that on an assessment of damages, either at the circuit or before a sheriff’s jury,'a defendant may call and examine witnesses, or otherwise prove all proper mitigating circumstances, seems to be well settled. (Saltus v. Kipp, 12 How. Pr., 343; 5 Duer, 646; McDonald v. Walsh, 5 Abb. Pr., 69; Gilbert v. Rounds, 14 How. Pr., 46, 51; Warner v. Kenny, 3 id., 323; Lane v. Gilbert, 9 id., 150; Hays v. Berryman, 6 Bosw., 679; Thompson v. Lumley, 7 Daly, 79; 3 Wait’s Pr., 662; 2 Rumsey’s Pr., 602.)

We think the court erred in excluding the evidence offered by the defendants as to the value of the property converted, and that for such error the judgment and order should be reversed, and the motion for an order vacating the assessment of damages should be granted.

This determination of the defendants’ appeal renders it wholly unnecessary to consider the question sought to be raised by the plaintiff’s appeal; it is, therefore, dismissed, without costs. ,

The judgment and order are reversed and motion to vacate assessment of damages granted, with ten dollars costs of motion and costs •of this appeal to the appellants.

Merwin, J., concurred.

Plaintiff’s appeal dismissed,'without costs; judgment and order reversed, and motion to vacate assessment of damages granted, with ten dollars costs of motion and costs of this appeal to the defendants.


text:
    ANSON E. YORK and Another, Respondents, v. WILLIAM W. CONDE and Another, Appellants.

      Equitable oral assignment — -when enforced as against a subsequent written assignment.

    In an action brought lo determine conflicting claims to a fund, the testimony was to the effect that certain of the claimants had indorsed the notes of a firm in order to enable it to carry out the contract, out of which such fund arose, under a promise that they should have the proceeds of the contract when closed lo repay them the amount paid by reason of said indorsements.

      field, that this agreement, although oral, amounted to an equitable assignment pro tanto of the fund, and that said claimants were entitled to priority over other creditors of the firm, holding a subsequent written assignment of said fund from it.
    Appeals by the defendants, William W. Conde and Jolm 0. Streeter, from a judgment, entered in tlie Jefferson county cleric’s office on tlie 9tli day of December, 1890, in favor of plaintiffs, after a trial before the court and a jury at the Jefferson County Circuit, at which a verdict was directed in favor of the plaintiffs for $2,58é.57.
    In September, 1889, the firm of Witherby & Gaffney, who were contractors and builders, entered into a contract with the government of the United States to construct certain buildings known as-Officers’ Quarters at Madison Barracks, Saeketts Harbor, N. Y.
    Subsequently, the plaintiffs, at the request of Witherby & Gaffney, sold and delivered to them on credit large quantities of lumber and building material which was used in the construction of such buildings, and was of the value of more than $3,000. Witherby & Gaffney, being thus indebted to the plaintiffs, before tlie completion of tlieir contract and on March 27, 1890, executed to them- an assignment of $3,000 of the money which should thereafter become due and owing them from the government, to be applied in part payment of their indebtedness. The moneys due Witherby & Gaffney were afterwards j>aid to the defendants, with notice of the plaintiffs’ assignment.
    The defense interposed was, that prior to the assignment to the plaintiffs by Witlierby & Gaffney the defendants had become accommodation indorsers for Witlierby & Gaffney to the extent of upwards of $1,000 ; that the defendant Conde was a surety to the government on the contractors’ bond, and that these indorsements were essential to enable the contractors to carry on their work, and the proceeds thereof went into the buildings ; that before such indorsements were made 'Witherby & Gaffney promised the. defendants that they would devote the moneys realized from the government on the contract. to the payment of the notes thus indorsed, and would transfer and assign the evidences of the government’s indebtedness to the indorsers to be devoted to that purpose; that thereafter, in pursuance of that purpose, and on April 18, 1890, "Witherby & Gaffney, who at that time were getting a further indorsement of' $500, assigned the same moneys in writing to the defendants; that afterwards, and on May 15, 1890, the government having delivered to Witherby & Gaffney a draft for the moneys due on the contract, less $110 penalties for non-performance as to time, they transferred the same to the defendants, who discharged the indorsed .notes therewith.
    On the trial the defendants also insisted that the assignment by Witherby & Gaffney to the plaintiffs, as well as the assignment to themselves, was void under section 3l77 of the United States. Revised Statutes.
    The defendant Streeter testified that at the time of the first indorsement Mr. Gaffney said: “ That under no circumstances woirld anything step in or interfere with the payment of these notes; that we should have the avails at the closing up, the payment from the government; that when it was transferred or delivered to him it would be transferred to us to wipe out these notes, and that he regarded it as a sacred matter ; it would be the first liability that woiild be canceled. There were several talks of' that character from September on as the indorsements were made, and these talks were had before March 27, 1890. Mr. Gaffney indorsed the check or draft and turned it over to Mr. Conde in my presence. Conde and I indorsed this paper jointly by arrangement between us three. He had to have help or he could not complete the job.”
    Mr. Conde testified : “ Mr. Gaffney repeatedly told me that if it should become necessary he would assign the contract with the government at any time I desired it; that he would assign over all right and title that he had in the property. I replied that I didn’t want the contract. The understanding between us was that at the final settlement, that out of the final money which he got there was enough percentage kept back, and when that was paid these notes would be retired. He promised to turn over the check or draft after he got it to me. That was at the time tire indorsements or some of them were made. It was stated that it was to be turned over for the retiring of these notes indorsed by me and Mr. Streeter. Those notes were made before March 17,1890. There were several talks like that before March 17, 1890, and Mr. Gaffney did so turn over the draft to me when he received it on financial settlement from the government.”
    The trial judge held that section ■ 3177 of the United States Revised Statutes did not apply to the assignment in question ; that the plaintiffs’ assignment was, therefore, not void, but gave them an equitable lien on the moneys in question; that such equitable lien could be enforced in an action at law; that what took place between the defendants and Gaffney at the time they commenced to indorse their paper did not operate to create a lien upon the fund or any right to have the fund applied to the payment of the notes indorsed by the defendants ; that their rights to have the fund applied to the payment of such notes was first created at the time of the first transfer in writing to the defendants.
    The defendants duly excepted to the direction of a verdict by the court, and also duly excepted to each of the propositions stated by the court in arriving at the conclusion to direct a verdict.

      Brown da Adams, for the appellant Conde.

      Watson M. Rogers, for the appellant Streeter.

      Henry Pv/roell, for the respondents.
   Martin, J.:

The controversy between the parties to this action was as to the priority of their respective rights to the fund in question.

The plaintiffs’ claim of title was founded on an assignment, to them made by Witherby & Gaffney March 27,1890. The defendants’ rights were based upon an oral agreement with Witherby & Gaffney, made long before the plaintiffs’ assignment, which the defendants contend amounted to an equitable assignment to them of the fund in question.

If the defendants’ contention is sustained by the proof, or if the evidence was sufficient to present a question of fact for the jury upon that question, the judgment must be reversed, and no other question need be considered.

The defendants’ testimony was to the effect that, in or about the month of September, 1889, the firm of “Witherby & Gaffney applied to the defendants to indorse the notes of that firm to enable it to procure the money necessary to prosecute the work under its contract with the United States government; that the defendants agreed to, and did, indorse such notes; that, in consideration of such agreement and indorsement by the defendants, said firm expressly agreed that the defendants should have the avails of such contract, when it was closed up, with which to pay the notes which should be indorsed by them; and that when the check or draft for the work should be received by said firm, it should be delivered to the defendants to be applied by them in paying such notes.

If this agreement was made as testified to, we think, as it was founded upon a valuable consideration, it amounted to an equitable assignment of the fund in question, and that the defendants were entitled to receive and use it for the payment of the notes indorsed by them. That such an agreement amounts to an equitable assignment seems to be well settled in this State. (Williams v. Ingersoll, 89 N. Y., 508 ; Fairbanks v. Sargent, 104 id., 108; S. C., 117 id., 320.) That the defendants subsequently took a written assignment does not affect such rights. The assignment was not invalid because it was oral. (Risley v. Phenix Bank of City of New York, 83 N. Y., 318 ; Coates v. First Nat. Bank of Emporia, 91 id., 20.)

“We think the court erred in holding, as a matter of law, that the defendants acquired no right to the fund in question, under then-agreement, and directing a verdict for the plaintiffs, and that the defendants’ exception thereto was well taken.

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

Hardin, P. J., and Merwin, J., concurred.

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


author: Martin, J. :

text:
    CHARLES ALLEMAN, Respondent, v. RALPH S. BOWEN, Appellant, Impleaded with Others, Defendants.

      Bills and notes — a complaint against an indorser must show notice of presentation of the note and of a refusal to pay it — proof of notice of non-payment.

    Tlie complaint in an action upon a promissory note alleged that in March one Dibble executed and delivered said note, payable on demand, to the payee; that, in September, the said payee indorsed the note and delivered it to another, and that by subsequent transfers it came to the plaintiff; that the note was duly presented for payment and that payment thereof was duly demanded, which was refused. The complaint failed to allege that notice of a demand of payment of the note by the maker, and of his refusal to pay, was given to the payee. Held, that, assuming that the note was past due when indorsed, the indorser of the note could only be held liable thereon by the taking of the customary steps as to its presentation for payment and the giving of notice of non-payment, and that the complaint was clearly insufficient.
    The plaintiff’s attorney presented the note to the indorser and asked him to pay it, stating the amount due. The indorser replied that “ that amount remained unpaid, and he supposed he ivas legally bound to pay it; morally he should not.”

      Held, that, in the absence of any other proof, this was insufficient to justify the court in-holding, as matter of law, that the indorser was given notice of 'nonpayment after a demand made of the maker.
    Appeal by the defendant Ealph S. Bowen from a judgment, entered in the cleric’s office of Onondaga county on the 20th day of March, 1891, in favor of plaintiff for $113 damages and costs, after a trial at the Onondaga Circuit before the court and a jury.
    The complaint in the action was as follows:
    The plaintiff in this action complains of the defendants therein, and states to the court, on information and belief, that the defendant, Ira D. Dibble, on the 10th day of March, in the year 1890, at Syracuse, N. Y., made his promissory note, in writing, dated that day and year, of which a copy is set forth in the words and figures following, to wit:
    “200. Syracuse, N. Y.,Moh. 10th, 1890.
    “ On demand after date, I promise to pay to the order of Ealph S. Bowen two hundred and no-100 dollars, at Bowen & Perry’s ■ office, 132 So. Salina St. Yalue received, with interest.
    (Signed.) “I. D. DIBBLE.”

      And then and there delivered the same to the said- payee, who thereafter, on or about the month of September, 1890, for value received, duly indorsed and transferred the same to the defendant, ■George Kromer, as follows :
    “ Pay George Kromer or order.
    “ KALPPI S. BOWEN.”
    That'said defendant Kromer, for value received, duly indorsed and transferred the saíne to the plaintiff, who is the holder and owner thereof.
    That prior to the commencement of this action the same was duly presented at the place where the same was made payable, for payment, and payment thereof then and there duly demanded, which was refused,
    That no part of said note has ever been paid except the sum of $150, paid in installments of twenty-five dollars each, monthly, the last payment being made in October, 1890, and there is now due and owing from the defendants to the plaintiff upon the same the sum for which judgment is hereinafter demanded.
    Wherefore the plaintiff demands judgment against the said defendants for fifty dollars, with interest from the 1st day of November, 1890, besides costs of this action.
    The plaintiff’s attorney presented the note to the indorser and asked him to pay it, stating the amount due. The indorser replied that “ that amount remained unpaid and he supposed he was legally bound to pay it; morally he should not.”

      W. ¡S. Andrews, for the appellant.

      B. Bf. Bailey and I. D. (J-arfield, for the respondent.
   Martin, J. :

This action wras against the maker and indorsers of a promissory note. No one defended except the appellant, who was the payee and first indorser. While the complaint contained allegations that the note was duly presented, at the place where the same was made payable, for payment, and payment thereof duly demanded, which was refused ; it contained no allegation that notice of such demand and refusal was given to the appellant. At the opening of the trial, the appellant moved to dismiss the complaint as to himself on the ground that it did not state facts sufficient to constitute a cause of action. This motion was denied, and the appellant excepted. We think this exception was well taken.

If it be admitted that the note was past due when it was indorsed by the appellant, still, as such indorser, he would be bound only upon the condition of demand -upon the maker and notice of nonpayment. (Leavitt v. Putnam, 3 N. Y., 494; St. John v. Roberts, 31 id., 442; Eisenlord v. Dillenback, 15 Hun, 23; Rice v. Wesson, 11 Met., 400.) To constitute a cause of action against the appellant, it was necessary to allege notice to the appellant of non-payment or to allege facts that would excuse such notice. The complaint in this action contained neither, and was clearly insufficient. (Cook v. Warren, 88 N. Y., 37; Clift v. Rodger, 25 Hun, 39.)

The court erred in denying the appellant’s motion, and, as the plaintiff did not apply for an amendment of his complaint, but took the risk of its sufficiency, he cannot on this appeal be relieved from his position. (Pope v. Terre Haute, C. and M. Co., 107 N. Y., 61, 66 ; Tooker v. Arnoux, 76 id., 397.) In such a case the pleadings cannot after trial be conformed to the proof. (Southwick v. First Nat. Bk. of Memphis, 84 N. Y., 420.)

We are also of the opinion that the evidence was insufficient to justify the court in directing a verdict for the plaintiff. There was no evidence of notice to the appellant of the demand and non-payment of such note by the maker, unless it was contained in the proof of the appellant’s statement that “ that amount ($50) remained unpaid and he supposed he was lpgally bound to pay it, morally he should not.” We think this evidence was not sufficient to justify the court in holding, as a matter of law, that the appellant was given notice of non-payment after demand of the maker, and that the court erred in directing a verdict. As was said by Judge Folger in Meyer v. Hibsher (47 N. Y., 270): “ Prima faeie, the appellant was entitled to have due presentment made of the note for payment, demand thereof and notice of non-payment. (Spies v. Gilmore, 1 Comst., 321.) And before the respondent can recover of the appellant, he is bound to prove that he has taken these steps, or that he is excused therefrom, or that the taking of them has been waived.”

The judgment must be reversed on the exceptions and a new trial granted, with costs to abide the event.

Hardin, P. J., and Merwin, J., concurred.

Judgment reversed on the exceptions and a new trial granted, with costs to abide the event.


text:
    In the Matter of JANE SANFORD, a Lunatic, and of the Application of EPENETUS HOWE and Twenty-three Others, to have their Compensation as Jurors upon the Inquisition of Lunacy Fixed and Directed to be Paid. EPENETUS HOWE and Others, Respondents, HARMON D. SANFORD and Others, Appellants.

      Proceding de lunático inquirondo — fees of jurors therein— Code of Civil Procedure, secs. 2333, 3313.
    The compensation óf a juror, in a proceeding under title 6 of chapter 17 of the Code of Civil Procedure, to inquire into the incompelency of an alleged lunatic, is the same as that of a juror upon the trial of an issue in an action in the same court, and this, by section 3313 of said Code, is, in a court of record, twenty-five cents.
    Appeal by Mary Fitzinger, Harmon D. Sanford and Leora Manning, the petitioners, upon an inquisition wherein Jane Sanford was found to be a lunatic, from an order, entered in the office of the clerk of Tioga county on the 6th day of October, 1890, directing the appellants to pay to each of twenty-three jurors upon said inquisition the sum of eight dollars for four days’ service as such jurors, and twenty-five cents additional, making in all, less certain payments made to certain jurors, the sum of $198 and costs.

      Horace L. Bronson, for the appellants.

      Roswell R. Moss, for the respondents.
   Martin, J.:

This was a proceeding under title 6 of chapter 17 of the Code of Civil Procedure for the appointment of a committee of the person and property of an alleged lunatic. A commission was issued out of this court to inquire into the competency of the alleged lunatic to manage herself or her affairs. The respondents were the jurors procured on the execution of the commission to make such inquiry. They found that the alleged lunatic was incompetent. Upon their discharge all but four were paid one dollar each. Four received nothing.

Subsequently, a motion was made for an order requiring the appellants to pay all the respondents the legal fees for their services, and to pay the respondent, Frank J. Norton, ten dollars for the use of a room in which the inquisition took place. Upon that motion the court held that each of the jurors was entitled to receive two dollars for each day he served and twenty-five cents trial fee, making the compensation of each eight dollars and twenty-five cents, as the trial occupied four days, and allowed the respondent, Norton, ten dollars for the use of his . room, and also allowed ten dollars costs of the motion to the respondents.

The principal, and practically the only, question discussed upon the argument of this appeal was as to the correctness of the order in allowing the respondents as jurors each the sum of eight dollars and twenty-five cents. We think no other question need be considered by us.

It is admitted by all the parties to this appeal that the compensation which jurors are to receive in such a proceeding is regulated by the provisions of the Code of Civil Procedure, but the difference between them arises as to the proper construction of the provisions pertaining to that subject.

Section 2333, which relates to the expenses of such a commission, provides: “The jurors are entitled to the same compensation as jurors v/pon the trial of an isstie in an action in the same court.” "Section 3313 declares: “ A trial juror, in an action or a special proceeding, in a court of record, is entitled, except as otherwise specially prescribed by statute in a particular court or a particular county, to the following fees: Twenty-five cents for each cause in which he is empanneled.” * * *

.An examination of these provisions seems to indicate quite .'clearly that the legislature intended that a juror in such a proceeding should receive only the same compensation that a juror would he entitled to for serving as such in a court of record in a case in which he was impanneled. It may be observed that while the ■word “ compensation ” is used in section 2333, and the word “fees” in section 3313, the provision of 2333 is not that jurors are entitled to the same compensation as persons attending the same court to serve as jurors, but is limited to the same compensation as jurors upon the trial of an issue in an action in the same court.

The compensation of a juror upon the trial of an issue in a court of record is twenty-five cents for each case in which he is impanneled, unless in the particular court or county in which it is. tried it is otherwise specially prescribed by statute. We find no special statute upon this subject relating either to Tioga county or to this court. We therefore conclude that the only compensation the respondents were entitled to as jurors was the sum of twenty-five cents each.

This conclusion is strengthened when we consider the fact that section 3316 provides that a trial juror sworn in the special proceedings therein named shall receive only twenty-five cents, and that prior to the adoption of the Code the fees of such jurors were only twelve and one-half cents.

We caunot think it was the intent of the law-makers that in such a proceeding the petitioners therein should be required to pay the jurors summoned not only the fee to which jurors are entitled on the trial of an issue in an action, but also the additional sum allowed to grand or trial jurors for tlieir attendance at a term of court which is allowed and paid by the county. Nor do we think the language of the statute justifies such a construction.

Moreover, if it were to be held otherwise, the order could not be sustained, as the papers show that the respondents were each allowed twenty-five cents, and two dollars per day in addition thereto, while there was no proof whatever as to any direction by the supervisors of Tioga county that any sum in addition to the fees prescribed by section 3313 should be allowed to jurors attending courts of record in that count3r, as may be done under the provisions of section 3314. It follows that the order appealed from should be modified by allowing each of the respondents the sum of twenty-five cents only for his services as a juror, and to the respondent Norton the sum of ten dollars, in addition, for the use of his room, and as modified, order affirmed, with ten dollars costs and disbursements to the appellants.

Hardin, P. J., and Merwin, J., concurred.

Order modified by allowing each of the respondents the sum of twenty-five cents only for his services as a juror, and to the respondent Norton the sum of ten dollars, in addition, for the use of his room, and as modified, order affirmed, with ten dollars costs and disbursements to the appellants.