text:
    CLARA J. BROWN, Respondent, v. SALLY ALLEN, as Administratrix, and RICHARD M. ALLEN and JAMES E. ALLEN, as Administrators of the Goods, Chattels and Credits of EMORY ALLEN, Deceased, Appellants.

      Eviction — dispossession, essential iherreto— application of the rule to wild lands — in the ease of the State.

    As a general rule the possession of the grantee, under a conveyance with warranty of title, must he disturbed before an eviction can be established, but in the case of unoccupied or abandoned property thi§ rule, in its full strictness at least, does not apply.
    Where a grantee of wild, uninclosed and unimproved land, abandons the property and the possession thereof, and the State becomes the owner of the title to the land by purchasing the same at a tax sale thereof, the State is, under the Forest. Preserve act (chap. 283 of 1885), and, by the exercise of the authority conferred upon the Forest Commissioners by the statute, constructively in possession thereof.
    Appeal by tbe defendants from a judgment, entered in the office-of the clerk of the county of Lewis on the 28th day of December, 1889, in favor of the plaintiff, for the sum of $4,330.16, after a trial before the court and a jury at the Lewis County Circuit, at which. a verdict in favor of the plaintiff was directed by the court.

      II. W. Bentley and E. Mg Garriy, for the appellants.

      G. D. Adams, for the respondent.
   Merwin, J.:

This action is brought to recover a balance due upon a bond dated May 24, 1870, executed by Emory Allen and Newton Northam fi> Marietta L. Brown and assigned by her to the plaintiff on the 2d of January, 1873. It is conditioned for the payment of $2,500 as follows : Eive hundred dollars and interest on the first day of January-then next; $1,000 on August 1, 1871, and $1,000 on August 1, 1872, with interest. The plaintiff admitted a credit of $1,051.99' as of July 18, 1874, and the judgment is for the balance. Emory Allen died February 26, 1886, and Northam died January 6, 1885.. This action was commenced June 19, 1889.

At the date of the bond Marietta L. Brown, the obligee therein,, .and Edward A. Brown, conveyed to' Allen and Northam, the obligors, ■certain lands in the town of G-reig in the county of Lewis, consisting of six parcels, containing in all acres, for the consideration ' as stated in the deed of $3,171.40. The bond in suit and a mortgage upon the premises conveyed were given back for a portion •of the purchase-money. The deed contains a covenant on the part •of the grantors “that the premises thus conveyed in the quiet and peaceable possession of the said parties of the second part, their heirs and assigns, they will forever warrant and defend against any jierson whomsoever lawfully claiming the same, or any part thereof.”

The defense in this action is based on this covenant. The claim of the defendants is that at the time of the sale the premises were •subject to the lien of taxes previously assessed, by virtue of which, through subsequent sales and conveyances, paramount title was .acquired by the purchasers, who took possession, and actually or ■constructively evicted the grantees, Alien and Northam.

The main questions on this appeal are, first, whether the evidence given by defendants showed paramount title; and, second, whether there was actual or constructive eviction. With a view •of showing paramount title the defendants offered in evidence .several deeds from the comptroller of the State to the people of the State, given upon tax sales made in pursuance of the provisions of •chapter 427 of the Laws of 1855. These deeds covered the premises in question, and had been duly recorded in Lewis county for more than two years. One of them, covering several parcels of the land .in question, purported, in substance, to be based on taxes assessed prior to the conveyance to Allen and Northam. It is not clear that the other parcels were sold for such taxes. This, however, is not here important, as the question here is whether the defendants have .any remedy as to any part of the premises. The claim of the plaintiff is that these deeds furnished no evidence of the power to ■.sell. The claim of the defendants is that the deeds, presumptively .at- least, show title in the. State. No evidence was given by the plaintiff to the contrary.

By section 65 of the act of 1855, as amended by chapter 209 of 1860, it was provided that such deeds “shall be presumptive •evidence that the sale and all proceedings prior thereto, from and including the assessment of the land, and all notices required by law to be given previous to'the expiration of fire two years allowed to-redeem, were regular according to the provisions of this act, and all laws directing or requiring the same, or in any manner relating' thereto.” By chapter 448 of the Laws of 1885, the section above-referred to was further amended, so far as the county of Lewis and. several other named counties were concerned, by providing that all. such conveyances, after having been recorded for 'two years in the-office of the clerk of the county in which the lands conveyed thereby are located, shall, six months after this act takes effect, be conclusive evidence that the sale, and all proceedings prior thereto, from and including the assessment of the land, and all notices required by law to be given previous to the expiration of the two years-allowed by law to redeem, were regular and were regularly given,, published and served according to the provisions of this act, and all laws directing or requiring the same, or in any manner relating-thereto.” In People v. Turner (117 N. Y., 227) it was held, with reference to a comptroller’s deed given in 1881, and similar to those’ given in this case, that the act of 1885 was constitutional, and that-the deed was conclusive, even as to an omission of the assessors amounting to a jurisdictional defect (p. 234). In Wood v. Knapp (100 N. Y., 109) it was held that the burden of proof was upon the-party questioning the title of a grantee in a comptroller’s deed given under the act of 1855, of showing by affirmative evidence that some material requirement of the statute had been omitted or defectively performed in the proceedings under which the sale was consummated.

We must, therefore, assume, I think, that the defendants made, at-least, a prima facie showing that the title of Allen and Northam to the premises, or some part of them, was lost by reason .of liens, prior to the deed to them.

The court below, in ordering a verdict for the plaintiff, held that-no sufficient eviction was shown. Was this correct? The deed to Allen and Northam seems not to have been recorded. There is-evidence in the case tending to show that after 1871 they never had anything to do with the premises; that in 1874 their agent-, upon being applied to by the agent of the plaintiff to have their deed recorded, replied that there was no object in getting the deed recorded, that the title wasn’t good as the lands had been sold for taxes. The tax sale was in 1871, and the deed from the comptroller--to the people of the State of 183 acres of the premises is dated February 1, 1875, and recorded May 30, 1877. The other deeds ■were later. In 1885, by chapter 283 of the Laws of that year, the Forest Commission was created. By section 7 of that act all the lands then owned by the State, or which might thereafter be ..acquired by it within certain counties, one of which was the county of Lewis, were constituted the “ Forest Preserve.” The lands so ■designated were to be kept forever as wild forest lands, and not to be sold or leased except in certain special cases. The care, custody, ■control and superintendence was given to the Forest Commission, .aad prosecution for all trespasses or injuries was provided for. The defendant offered to show that the lands in question were included within the Forest Preserve, but this being objected to by the plaintiff was excluded. The report of the Forest Commission, made for the year 1885 to the legislature in pursuance of the act, and which showed that the specific lots in controversy here were included in the Forest Preserve, was also excluded.

As a general rule, the possession of the grantee must be ■disturbed before there can be an eviction. But in case of unoccupied or abandoned property the rule in its full sense at least does not apply. In regard to such a case it is said, in St. John v. Palmer (5 Hill, 599), that it is not necessary that the covenantee should be evicted by legal process, it is enough that he has yielded the possession to the rightful owner, or that such owner has entered, the premises being vacant, and taken possession. In ■that case the premises had been sold upon a decree of foreclosure ■of a prior mortgage. No actual possession had been taken by the purchaser, but he had, after his title became perfect, offered to sell the premises and had paid taxes. It was said that, as there was no -actual possession in any one, no formal act was necessary for the purpose of giving the purchaser the complete enjoyment of his legal rights; the constructive possession was transferred to the purchaser and he afterwards exercised acts of ownership. It was held that there was such an eviction as amounted to a breach of the covenant. In the same case Judge Cowen was of the opinion that the •covenant was broken the moment the title passed to the purchaser ■on the foreclosure sale, and that an action by the covenantee would lie, although the purchaser had done nothing by way of asserting his title. In a similar case ( Wood v. Forncrook, 3 Thomp. & Cook, 303), it is said by Mullin, P. J.: Tbe owner of tbe legal title to uninclosed and uncultivated land is presumed to ,be in possession, as possession in law follows tbe title. To entitle a plaintiff to recover damages for tbe breach of tbe covenant for quiet enjoyment an eviction must be proved, or be may, in tbe event of bis title being divested by a superior title, surrender possession to tbe owner of tbe superior title or notify bis grantor that be relinquishes all claim to said premises, or be may show that tbe owner of tbe superior title has offered them for sale.”

In tbe present case tbe evidence would justify tbe finding that at or before tbe acquiring of tbe title by tbe State, tbe grantees, Allen and Nortbam, abandoned tbe property and were not from that time in possession. Tbe lands were apparently wild lands, uninclosed and unimproved. The State having become tbe owner of tbe title, was constructively in possession, and its ownership was publicly asserted by its Forest Preserve act of 1885, and by tbe acts of its Forest Commission under tbe authority given by the statute. Tbe acts of this commission were competent evidence on tbe subject. Tbe State, in order to perfect and complete its possessory right, was not bound to seek out and personally notify tbe prior owners who were not in possession. Nor were Allen and Nortbam, or those representing them, in order to perfect their remedy on tbe covenant, bound to enter into possession and subject themselves to the pains and penalties of trespassers under tbe Forest Preserve act. There was, in substance, a surrender to paramount title effectively asserted.

In Schulenherg v. Harriman (21 Wall., 44) it was held that an act of the legislature directing tbe possession and appropriation of property, or offering it for sale or settlement, was equivalent to an entry for tbe purpose of taking advantage of tbe breach of a condition in a previous grant.

In McGary v. Hastings (39 Cal., 368) it is, in substance, said that tbe mere passage of a law making public land liable to entry was such an assertion of the title of tbe government as authorized an abandonment by a vendee under an invalid title.

In Green v. Irving (54 Miss., 450; S. C., 28 Am. Rep., 360) it was held that a grant of land by tbe State, while holding tbe paramount title, is such hostile assertion of such title as justifies persons in possession under defective titles in treating it as an eviction, abandoning possession and suing their covenantors. These cases are quite pertinent to the question here. The Forest Preserve act, supplemented by the evidence above referred to as offered and rejected, was sufficient to show a hostile assertion by the State of its title and a constructive eviction under the circumstances of this case.

We are, therefore, of the opinion that the court below erred in holding that there was no eviction sufficient to give the defendants a remedy on the covenant.

The judgment must, therefore, be reversed.

Martin, J., concurred; Hardin, P. J., concurred in the result.

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


source: Caselaw Access Project

author: Merwin, J.:

license: Public Domain

text:
    JOHN MOORE and PATRICK LYNCH, Respondents, v. LEWIS C. KING and EUGENE F. KING, Appellants.

      Wa/i'mnty on a sale of goods — when applicable to subsequent sales.

    Goods were purchased, under date of October 4, 1885, with an agreement on the part of the seller that he would warrant the article to be as had been represented. Subsequently, on April 26, 1886, the purchaser ordered a further amount of the goods, “same as you sent us on October 4, 1885;” and subsequently, on June 9,1886, he ordered a further supply of the same articles as follows; “White shellac same as sent on May 8, 1886.”

      Reid, that the warranty given upon the first sale applied to the article purchased on June 9, 1886.
    Appeal by the defendants from a judgment, entered in the office of the clerk of the county of Onondaga on the 22d day of June, 1889, in favor of the plaintiffs, after a trial before a referee, by whom a judgment was directed against the defendants for the sum of $700.

      L. A. Gould, for the appellants.

      Thomas Hogan, for the respondents.
   Merwin, J.:

The plaintiffs in 1885 and 1886 were engaged at Syracuse in the manufacture and sale of picture frames, moldings and ornamental woods, and the defendants were engaged in New York city in the manufacture and sale of varnishes, shellac and painters’ materials. - In the latter part of September or 1st of October, 1885, one Snyder, a selling agent of the defendants, called on the plaintiffs for the purpose of soliciting their trade. As to this interview the referee finds as follows: Snyder “ stated to them that the defendants had an article of-shellac varnish equal, if not superior, to anything in the market; that they would find it to their advantage to use it; that it had a better body than anything that was in the market at that time; that it would dry.-\ and was very quick in hardening ; and that if the plaintiffs would patronize the defendants they would warrant the article to be as had been represented, and that they would warrant all goods sold in the future to be as had been represented; that the plaintiffs suggested that a sample of the shellac varnish of the defendant be sent, and gave an order to the defendants for a ten-gallon cask of shellac varnish, which order was received by them and known to be a sample order’, which was, on or about the 4th day of October 1885, delivered to the plaintiffs; that said Frank Snyder also stated that the defendants would warrant all goods purchased of them by the plaintiffs in the future to be equal to said sample cask; that the plaintiffs stated to said Frank Snyder that the shellac varnish would be used by them upon moldings, and said Frank Snyder stated that the shellac varnish of the defendants was suitable for that purpose.”

The referee further finds that Snyder was expressly authorized by the defendants to warrant the article of shellac varnish sold by them to be made from fine gum shellac and wood alcohol, and that it was the usage of the business of the defendants for a selling agent to warrant the quality of the article sold.

On the 26th of April, 1886, the plaintiffs ordered of defendants one barrel of pure white shellac varnish, same as you sent us October 4, 1885,” reference being made to the sample cask delivered at that date, and thereupon a barrel of such varnish was delivered by defendants to plaintiffs on the 8th of May, 1886. This barrel and the sample cask were used in the business of plaintiffs and applied' to moldings and corresponded to the warranties in every respect, and were made from pure shellac gum and pure wood alcohol.

On the 9th of June, 1886, the plaintiffs, relying as the referee finds, on said warranties, ordered of the defendants' a second barrel " white shellac, same as sent on May 8, ’86,” reference being made to the barrel delivered at that date, and thereupon, on the 17th of June, 1886, the defendants delivered to plaintiffs a barrel of shellac varnish purporting to be the same. This is the barrel of varnish in controversy.

The referee finds that about one-half of it was properly applied and used in the business of plaintiffs upon 20,000 feet of mold, ings; that it did not contain an article made from pure gum shellac and pure wood alcohol, and contained an article which did not dry or harden, and was not suitable for application upon moldings; and which became soft, sticky and gummy after application upon said moldings; that the moldings would have been worth ten cents a foot if the article applied thereupon had been made from pure gum shellac and pure wood alcohol, and had been suitable for the purpose of finishing moldings; that 14,000 feet of the 20,000 were of the value of five cents per foot; that the article in the barrel in question had no visible defect, and appeared in all respects similar to and identical in quality with the previous barrel; and that no defect could have been discovered from an examination of the same, or until some time after its application to the moldings; that by reason of the failure of the article to correspond with the warranties, the plaintiffs were damaged in the sum of $700, for which judgment was ordered.

It is claimed, on the part of the defendants, first, that the sale of the goods in question was without warranty and, secondly, that the findings setting forth defects are against the weight of evidence. The main argument as to the first proposition is based on the circumstance, that at the time of that particular sale no representation was made by the defendants, and that what occurred at the first sale did not apply to the last. There was conflicting evidence as to what occurred on the occasion of the first or sample order, and the finding of the referee on that subject must be assumed to be correct. That being so, it is very clear that the parties contemplated future orders, and that whatever was then said as to the quality or adaptability of the goods was intended and understood to apply to subsequent sales. So that when the plaintiffs on the second occasion ordered goods the same as the first, and upon the last occasion ordered goods the same as the second, there was no room for defendants to doubt as to what was ordered; and when they filled the order they must be presumed to have done so under the arrangement as first made and as a part of that transaction, and whatever representations were then made must be deemed to apply. (Wait v. Boone, 23 N. Y. St. Rep., 341.) They knew the first was a sample order. There is no doubt about the authority of the agent to make the warranty. An agent authorized to sell property, in the absence of any express limitation of his power, is authorized to do any act or to make any declaration in regard to the property found necessary to make a sale and usually incidental thereto. (Ahern v. Goodspeed, 72 N. Y., 108; Mayer v. Dean, 115 id., 560.)

The warranty, we think, was sufficiently established. Was there a breach shown % A large amount of evidence on this subject was presented by each party. On the part of plaintiffs it was shown that, after the application of the varnish to moldings, unsatisfactory results were developed. The vital question was whether these results were attributable to a poor quality of shellac. In determining this question, the reliability of the witnesses upon either side was, to a certain extent, involved. Inferences were to be drawn and this was peculiarly within the province of the court below. It is argued that it was incumbent on the plaintiffs to show that all of the moldings upon which this varnish was applied showed defective results. The finding of the referee is that, as to 6,000 feet, such results were not sho wn. It is not found that they were not defective, but that they were not shown to be so. There is evidence that that 6,000 feet had been sold by plaintiffs, and claims for damages in some instances made, but no proof sufficient to satisfy the referee of the condition or value, in fact, of such moldings. No damages were allowed on that amount. The apparent inability of the plaintiffs to show the condition of this amount of the moldings should not bar their claim. If there was any ground to believe that such part was not defective, though treated the same as the rest, it might be troublesome to plaintiffs’ theory. This, however, is not shown or found. The finding of the referee on this subject should not be disturbed.

No point is made by the defendants as to any ruling upon evidence. As to damages, they claim that they are excessive and that the measure is erroneous. In support of this, the only statement in defendants’ points is that it sufficiently appears from the plaintiffs’ verified bill of particulars which was -offered in evidence. The record shows that after this bill was offered, and after the plaintiffs rested their case, they were allowed, upon terms which were complied with, to amend the complaint to conform to the proof. This being so, the bill of particulars, served a long time before, ceased to limit the recovery. The question, then, is whether the proof sustains the findings as to damages.

It was shown by the plaintiffs that the moldings would have been worth ten cents per foot if the article applied thereon had been as warranted, but were, in fact,'worth only five cents per foot. This evidence was not objected to as not furnishing the proper measure of damages, but objection was made on other grounds which were properly overruled. It seems to have been assumed that that was the proper measure. (Parks v. Morris Ax and Tool Co., 54 N. Y., 586.) No evidence was given by the defendants to contradict this valuation, and no request was made for finding on that subject. It was shown by plaintiffs that the difference of five cents would be the expense of taking off the old finish and putting on the new, so ■that this difference represents the actual damages.

The defendants knew the purpose for which the varnish was to be applied and represented it suitable, and it is found, upon sufficient evidence, that the defect could not have been discovered before it was applied. As the case stands, we think the finding as to damages must be sustained and the judgment affirmed, with costs.

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

Judgment affirmed, with costs.


author: Martin, J.:

text:
    LOUISA W. HAMER, Respondent, v. FRANKLIN SIDWAY, as Executor of the Last Will and Testament of WILLIAM E. STORY, Deceased, Appellant.

      Promise to make a gift — evidence of delivery is essential to its enforcement — a rnotive for a promise is not a consideration therefor — statute of limitations — trust.
    An uncle promised liis nephew that if he would not drink, smoke, play cards for money, or play billiards, until he was twenty-one years of age, he, the uncle, would give him $5,000 on that day.
    Subsequently, on the nephew’s becoming of age, he wrote to his uncle as follows:
    “lam twenty-one years old to-day and I am now my own boss, and I believe, according to agreement, that there is due me five thousand dollars. I have lived up to the contract to the letter in every sense of the word,” to which the uncle replied: “Tour letter of the 81st ult. came to hand all right, saying you had liyed up to the promise made to me several years ago. I have no doubt but what you have, for which you shall have five thousand dollars as I promised you.” The letter further stated that the writer had the money in the bank which he intended for his nephew, and which he should certainly have, further stating: “I do not intend to interfere with this money in any way until I think you are capable of taking care of it, and the sooner that time comes the better it will please me.”
    In an action brought to recover this money:

      Reid, that the word “gift ” signified a gratuitous transfer without any equivalent; that although the intention to give may be established by the most satisfactory evidence, and instruments to that effect may have been formally executed by the donor purporting to transfer title to the donee, or there may be the most explicit declaration of an intention to give, or of an actual present gift, yet unless . there is delivery the intention is defeated.
    That as the gift in this case was not completed, by a delivery of the subject-matter of it, it was invalid and did not give a cause of action to the nephew for the recovery thereof.
    That while there was a motive for this promise there was no consideration therefor.
    That, even if it were assumed that there was a sufficient consideration to uphold the promise,, the claim of the nephew to this $5,000 accrued when he became twenty-one years of age, in 1875, and was consequently barred by the statute of limitations at the time that this action was brought in 1887.
    That, in this case, there was no declaration of a trust under which the uncle was to hold this money, nor circumstances which showed that a trust was intended, and consequently the bar of the statute was not avoided.
    Appeal by tbe defendant from a judgment, entered in tbe office of tbe clerk of tbe county of Cbemung on tbe 1st day of October, 1889, in favor of tbe plaintiff:, for $9,585.89 and interest and costs.

      The action was brought in December, 1887, to recover $5,000, with interest from February 6, 1875, alleged, to be on deposit with William E. Story, the defendant’s testator, on the 6th day of February, 1875, which sum it was alleged that the said William E. Story had promised and agreed to pay whenever thereunto duly requested so to do.

      Lewis <& Moot, for the appellant.

      Swift <& Weaver, for the respondent.
   Martin, J.:

The respondent seeks to uphold the recovery in this action primarily on the ground that, in March, 1869, the defendant’s testator promised his nephew, William E. Story (to whose rights the plaintiff claims to have succeeded), that if he would not drink, smoke, play cards for money or play billiards until he was twenty-one years of age, he, the testator, would give ,him $5,000 on that day, and that that transaction constituted a valid and binding contract between the parties which can be enforced against the testator’s estate.

Thus, at the threshold of this investigation, we are presented with the broad question, whether what occurred at that time amounted to a valid and binding contract. The nature and character' of this transaction will, perhaps, be better understood if we here group the evidence as to what was said and done by the parties. The testimony introduced by the plaintiff was to the effect that, in March, 1869, when the testator and William E. Story were attending the golden wedding of the father of the testator, he said to William, “Willie, I am going to make you a proposition. Willie told him he would like to hear it; ” that the testator then said, If you will not drink any liquor, will not smoke, will not play cards or billiards until you are twenty-one, I will give you five thousand dollars that day.” “ Of course, if you want to play for fun, that I don’t consider playing cards. Willie said he would endeavor to carry it out, that he would do it.” The plaintiff also proved by the witness, Maggie E. Judson, that she was in the employ of William’s father from 1864 for five or six years and boarded in the family; that during that time the testator frequently visited there, and during those visits she frequently heard Mm, when in conversation with the family, make the statement that he had $5,000 in bank for his nephew, William E. Story, and that on two occasions he made the statement to her that he had $5,000 on deposit in the bank for his little nephew, William E. Story, when he became of age. This witness further testified that she never heard him mention any contract between himself and his nephew. This nephew was only a child then of eight or ten years of age. On cross-examination the witness testified: Just what he said to me was, I have five thousand dollars on deposit in the bank at interest for Willie when he comes of age. He also said at the same time that when Willie came of age, if everything was favorable, he would start him in business and help him, and he said he thought this five thousand dollars would be something for him to look forward to that would stimulate him to do right; and if he was steady and industrious this would be a good start, and if he was not, this would be enough for him to squander.” The plaintiff also proved that the relations between the testator and his nephew were intimate.

When William became twenty-one years of age he wrote the testator the following letter:

Dear Hnole. — I am twenty-one years old to-day and I am now my own boss, and I believe, according to agreement, that there is due me $5,000. I have lived up to the contract to the letter in every sense of the word.”

The testator’s reply to this letter, so far as material to the questions involved in this case, was as follows:

“ Buffalo, February 26, 18Y5.
“ W. E. Story, Jr.:
“Dear Nephew. — Your letter of the thirty-first ult. came to hand all right saying you had lived up to the promise made to me several years ago. I have no doubt but what you have, for which you shall have $5,000 as I promised you. I had the money in the bank the day you were twenty-one years old that I intended for you, and you shall have the money certain. Now, Willie, I do not intend to interfere with this money in any way until I think you are capable of taking care of it, and the sooner that time comes the better it will please me ; I would hate very much to have you start out in some adventure that you thought all right and lose this money in one year. The first $5,000 I got together cost me a heap of hard work. * * * Willie, you are twenty-one and you have many a tiling to learn yet. This money you have earned muck easier than I did, besides acquiring good habits at the same time, and you are quite welcome to the money; hope you will make good use of it. I was ten long years getting this together after I was your age. Now, hoping this will be satisfactory, I stop. * * *
“ P. S. You can consider this money on interest.”

From this evidence can it be properly said that there was a valid contract between the parties by which the testator became legally bound to pay William E. Story $5,000 when he became twenty-one years of age if he refrained until that time from indulging in the habits mentioned? The appellant claims not. His contention is, that what occurred between the parties did not amount to and was not understood or intended by them as a legal and binding contract, but that it was simply a promise by the testator to make his nephew a gift of the sum of $5,000 when he became twenty-one years of age if he should abstain from the evil and unnecessary habits referred to. The evidence, we think, shows that such was the nature and effect of that transaction.

The promise of the testator, as testified to by the plaintiff’s witnesses, was that, if his nephew would refrain from smoking, drinking and gambling during his minority, he would give him $5,000 on the day he became of age. It will be observed that this promise was not that he would pay him that amount for any service to be performed for the testator, but that he would give him that amount as a gratuity, as an incentive to his nephew to become a sober and worthy man, free from evil and useless habits. In its ordinary and familiar signification the word “ give ” means to transfer gratuitously, without any equivalent. Presumably, the word was used m that sense by the testator. Hnless the evidence shows that it was used in some other sense, its ordinary signification should be given it. We find no sufficient evidence in this case to hold that the word. “ give ” was used otherwise than in its ordinary sense. The evidence of the witness Judson shows that when Willie was a child only eight or ten years of age the testator contemplated making him a gift of that sum when he became of age, and that he frequently mentioned his purpose in the family of his brother, and that he also contemplated starting him in business at that time if everything was favor■able. Thus the purpose of the testator would seem not to have been •a new one arising at that time, but one which had existed for years, and which was known to the family. This witness also testified that this contemplated gift was not only a subject of frequent conversation between the testator and his brother’s family, but that he ■conversed with her in relation to it upon at least two occasions, and still she never heard anything about any contract between the testator and William. This testimony tends to sustain the appellant’s •claim that the arrangement between the parties was in the nature .■of a promised gift by the testator.

But it may be said that the correspondence between the parties when William became of age tends to show that the arrangement • was as claimed by the respondent. It is true that William, in his letter to the testator, refers to the arrangement between them as an agreement or contract, and states that he believes there is his due $5,000, but in the testator’s reply to that letter he mentions the $5,000 ■only as a sum which he had promised to his nephew. In this letter there is nothing reflecting any light /upon the original transaction which shows that the testator recognized any legal liability or binding contract upon which lie regarded himself as indebted to his nephew. On the contrary, the testator’s letter is inconsistent with that idea, for, after stating that he had the money in the bank that he intended for him (William), and after he again promised that he should have it, the testator states unqualifiedly that he does not intend to interfere with this money in any way until he 'thinks William capable of taking care of it. Thus the testator, instead of recognizing any legal liability to pay the money when William became twenty-one years of age, treated the matter just as he doubtless understood it, as a promise to make a gift at that time, •and he then, in effect, refused to perfect the gift by delivery, but insisted upon retaining it under his own dominion, and control until he should think William capable of taking care of it. When this letter was received by William the evidence fails to show that he •objected to it, or claimed that he had any right to the money until ■such time as the testator should see fit to give it to him. This evidence is inconsistent with the existence of a valid contract, and ■consistent only with the appellant’s theory that this transaction was -a mere promise to make a gift, and that both parties so regarded it. We think the transaction between the testator and William E. Story-amounted to no more than a promise on the part of the testator that, he would give William $5,000 when he became twenty-one years of' age if he should prove himself worthy of it by abstaining from certain-useless, evil and expensive habits. As was said by Andrews, J., in Beaver v. Beaver (117 N. Y., 428, 429): “ The elements necessary to constitute a valid gift are well understood and are not the subject, of dispute. There must be on the part of the donor an intent to-give, and a delivery of the thing given, to or for the donee, in pursuance of such intent, and on the part of the donee, acceptance. The subject of the gift may be chattels, choses in action, or any form of personal property, and what constitutes a delivery may depend on the nature and situation of the thing given. The-delivery may be symbolical or actual, that is, by actually transferring the manual custody of the chattel to the donee, or giving to-him the symbol which represents possession. In case of bonds,, notes or choses in action, the delivery of the instrument which represents the debt is a gift of the debt, if that is the intention and so, also, where the debt is that of the donee it may be given, as. has been held, by the delivery of a receipt acknowledging payment.. ( Westerlo v. De Witt, 36 N. Y., 340; Gray v. Barton, 55 id., 72; 2 Schouler on Pers. Prop., § 66 et seq.) The acceptance, also, may be implied where the gift, otherwise complete, is beneficial to thedonee. But delivery by the donor, either actual or constructive, operating to divest the donor of possession of and dominion over-the thing, is a constant and essential factor in every transaction which takes effect as a completed ' gift. Anything short of' this strips it of the quality of completeness which distinguishes an intention to give, which alone amounts to nothing, from the consummated act, which changes the title. The intention to give is often established by most satisfactory evidence, although the gift fails. Instruments may be ever so formally executed by the donor, purporting to transfer title to the donee, or there may be the most: explicit declaration of an intention to give, or of an actual present, gift, yet unless there is delivery the intention is defeated. Several, cases of this kind have been recently considered by this court.. (Young v. Young, 80 N. Y., 438; Jackson v. Twenty-third St. Ry. Co., 88 id., 520; In re Crawford, 113 id., 560.)” Therefore,. as tbe gift in. this case was not completed by a delivery of the subject of it, it was invalid and could not form the basis of a recovery-in this action.

If, however, it could be held that the transaction between the-testator and William E. Story was intended by the parties as a valid agreement by the testator to pay his nephew $5,000 to induce him to abstain from smoking, drinking and gambling until he was-twenty-one years of age, still it would be very difficult to discover any sufficient consideration to uphold such an agreement. There was doubtless a motive for this promise, but was there a consideration ? There are many motives which may induce an agreement. which do not furnish sufficient consideration to uphold it. It may be that the testator was morally bound to keep his promise, but a-gratuitous promise, not under seal, however strong may be the motives, or even the moral duty on which it rests, will not be enforced by courts of justice. The doctrine that a moral obligation may become legally binding through an express promise, though formerly held in England and in the Enited States, has since been generally repudiated, except in Pennsylvania. That doctrine now forms no part of the jurisprudence of this State. Only a valuable consideration will uphold an executory contract. The consideration must be something of value, something either beneficial to one party or disadvantageous to the other in a pecuniary sense. How can it be said that William E. Story has performed any act which was in any pecuniary sense either beneficial to the testator or disadvantageous to himself by abstaining from. habits which would have been not only expensive, but which were unnecessary and evil in their tendency ?

The only case cited by the respondent which tends to give the slightest countenance to the doctrine contended for is that of Shadwell v. Shadwell (9 C. B. [N. S.] 169), but that case is clearly distinguishable from this. The decision in that case may well be sustained upon the ground that the plaintiff made a material change in his position and incurred additional pecuniary liabilities. While in the case cited it might be said that the nephew changed his position by his marriage, and thus incurred additional pecuniary liabilities at the request of his uncle, such is not the case at bar. If the nephew in this ease changed his position by abstaining from ■expensive liabits which could in no way benefit him, it did not in any way add to his pecuniary liability, but could only have resulted to his pecuniary benefit. We doubt if there was any sufficient consideration to uphold an agreement between the testator and his nephew, even if the transaction between them were to be regarded .as such.

Again, if it were admitted that this agreement was intended as a ■contract between the parties, and not as a gift, and that the consideration was sufficient to uphold it, still the plaintiff’s right of recovery would be barred by the statute of limitations. If there was a contract between the parties, it was that the testator should pay his nephew $5,000 when he became twenty-one years of age. If this claim was ever due, it became due at that time. It was then that William demanded it, and the testator, in effect, declined to pay it until such time as he should think William capable of taking care ■of it. If William ever had a cause of action against the testator, it arose when he became twenty-one years of age and more than twelve years before the commencement of this action.

But it is claimed by the respondent that the letter of the testator, interpreted in the light of the surrounding circumstances, established a trust in favor of William and made the testator a trustee ■of the sum of $5,000 which he had promised William. The case of Martin v. Funk (75 N. Y., 134) and kindred cases are relied upon as sustaining that claim. The cases cited are to the effect that where a trust is declared, whether in a third person or in the donor, it is not essential that the property should be possessed by the cestui que trust, or that the latter should be informed of the trust.

It will be seen, by an examination of the cases relied upon, that they were cases where there was an unequivocal declaration of a trust. In the case at bar there was no declaration of a trust either by the testator’s letter or otherwise. There was no evidence in the case that the testator ever deposited any money in the bank in the name of his nephew, or that he ever deposited any in his own name as trustee for him. The letters and other proof were, at most, to the effect that the testator had money in the bank that he intended for William, with which he did not propose to interfere until he thought William capable of taking care of it, but that William could ■consider the money on interest. This evidence falls far short of the requirements necessary to create a valid trust, even under the authorities cited by the respondent. As was further said by Andrews, J\, in Beaver v. Beaver (supra), which was a case somewhat similar to this : “ To constitute a trust there must be either an explicit declara-, tion of trust, or circumstances which show beyond reasonable doubt that a trust was intended to be created. It would introduce a dangerous instability of titles if anything less was required, or if a voluntary trust -mter vivos could be established in the absence of express words, by circumstances capable of another construction, or consistent with a different' intention.” (See, also, Young v. Young, 80 N. Y., 422; Hone v. De Peyster, 3 How. Pr. [N. S.], 422; S. C., 103 N. Y., 662; In re Crawford, 113 id., 560.)

We are unable to discover any ground upon which it can be held that the testator intended to establish a trust in favor of William, or to constitute himself a trustee of the $5,000 in question. It. seems to us that the evidence, at most, discloses an unexecuted promise by the testator to give William $5,000 when he became of age, if he proved himself worthy of it, and that, upon his attaining his. majority, the testator again promised to make the same gift, with the addition of the interest, when he should consider his nephew capable of taking care of it. As there was in this case neither an express delaration of a trust, nor circumstances which show that a trust was intended, it follows that the recovery in this action cannot be sustained upon that ground.

Moreover, the evidence in this case is far from satisfactory. It tends to show quite clearly that the testator, during his lifetime, had fulfilled his promise to his nephew. Soon after the letter of the testator was written we find William engaged in business with his father. He had borrowed $2,500 of the testator, for which he gave his promissory note. Subsequently he, and his father failed in business and were declared bankrupts. In the schedules filed in that proceeding he makes no mention of any claim or debt against the testator, and when required to state any and all money or debts that were due or owing to him, he declared there were none except those which were mentioned, which did not include this claim.- He also declared upon his oath that there was no money held in trust for him by any one. After this the testator transferred to William and his father $11,000 worth of goods, for which he received two one thousand dollar notes and a general release under seal executed by both, which was broad enough to cover this claim.

The plaintiff seeks to avoid the effect of this evidence by proving that the plaintiff’s claim had been previously assigned by William to his wife, and that the testator knew of such assignment when the release was given. The credibility of that testimony is materially .shaken by the fact that when this action was brought no such assignment was alleged, but the plaintiff alleged in her complaint that she acquired title to this claim directly from William by an assignment made February 3, 1887. The plaintiff’s attorney, who drew that ■complaint, also swears that such an assignment was before him when he drew it. It may be that the assignment was made by William to his Avife, as alleged and proved, but it is certainly very remarkable that that fact should have been forgotten by them until the defendant pleaded a release as a defense to this action. It would seem that either William, his wife or the plaintiff, must have remembered the fact, if it existed, either when the claim against the testator’s estate Avas made, verified and presented, or when the original complaint in this action was prepared. Without stating the evidence in further detail, it certainly is not satisfactory to us. In a ease like this, where the estate of a dead man is assaulted by dissatisfied relatives, it is the duty of a court to scrutinize the evidence given to sustain such an assault quite carefully, and such a claim should be allowed only upon fair, reliable and consistent evidence, which shows that it is a just one. If there were no other questions in the case except the question whether the plaintiff’s claim had been paid and released, we should be inclined to regard it as our duty to grant a new trial upon the ground that the decision was against the weight of evidence. We are, however, of the opinion that there was no legal contract between the parties sufficient to uphold the recovery in this ease, and that the judgment should be reversed.

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

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


author: Hardin, P. J.:

text:
    JOHN WALLACE, Respondent, v. GEORGE NODINE, Appellant.

      Vendor and purchaser of personal property — no delivery of possession — the presumption of fraud therefrom is not overcome by proof of an adequate consideration.

    In an action brought by a purchaser of personal property to recover the value of such property, against a constable, who had taken the property by virtue of an execution issued upon a judgment recovered against the vendor thereof, the court charged the jury “ that even though the jury should find that there was no change of possession if the plaintiff, and the plaintiff’s assignor, paid an adequate consideration for the property, the burden is upon the defendant to show that there was fraudulent intent.”

      Held, that, under the statute of frauds, the fact that there was no change of possession of the property created a presumption that the sale was fraudulent and void, and the burden of showing that the purchase was “in good faith and without any intent to defraud ” was upon the plaintiff, and continued with him throughout the trial.
    That while the proof of payment of an adequate consideration was undoubtedly strong evidence of such good faith for the consideration of the jury, yet it was not proper for the court to charge, as matter of law, that proof of the consideration, however adequate and abundant it might be, was sufficient to establish the fact that the purchase by the plaintiff was made in good faith and without any intent to defraud the creditors of his vendor.
    Appeal by the defendant George Nodine from a judgment of the Supreme Court, entered in the office of the clerk of the county of Onondaga on the 17th day of October, 1889, with notice of an intention to bring up for review upon such appeal the questions of law and fact disclosed by the record and proceedings upon the trial; and also an appeal from an order, entered in the said clerk’s office on October 7, 1889, denying a motion for a new trial made on the minutes of the court.
    The action was tried at the Onondaga Circuit before the court and a jury, and a verdict was rendered in favor of the plaintiff for the sum of $141.72. The action was brought for the recovery of certain personal property alleged to have been taken from the possession of the plaintiff by the defendant and sold.
    The defense was that the defendant was a constable and took the property by virtue of an execution issued upon a judgment in favor of Charles King and another against James Wallace and Earl Hazard; and that the property belonged to the defendants-in the execution at the time of the levy and sale; and that plaintiffs claim thereto is through a sale of the property to him by James Wallace, with intent to hinder, delay or defraud the King brothers and other creditors. Plaintiff was the owner of a farm in the town of Spafford, which in 1885 he leased to James Wallace,- his son, and Earl Hazard, his son-in-law, at the agreed rent of $300, payable on the 1st of April, 1886. On the 15th day of February, 1886, Earl Hazard and James Wallace executed to the plaintiff their promissory note in the sum of $512.54, and they executed a chattel mortgage upon certain personal property to secure the payment of the note. The genuineness of the indebtedness represented by the note was abundantly proven, and was conceded and not disputed by the defendant. In the fall of 1886 Earl Hazard and James Wallace seem to have come to the conclusion to give up the possession of the farm, and Hazard, who had kept house on the farm, moved off from it with his family, and James thereafter, boarded with his father some two miles distant and performed some labor upon the farm taking'care of the stock. On the 30th day of November, 1886, James Wallace executed and delivered to the plaintiff an instrument as follows:
    “ Spafford, November 30th, 1886.
    “ I, for a valid consideration, have sold and conveyed to John Wallace the following propez’ty, viz.:
    “ One bin of oats; one do. of baz’ley ; one lot of loose hay ; one lot of loose straw; together with all zny right, title and interest in a lot of baled hay, all of which is now in his barns and is now in his possession.
    “ Deceived pay.
    “JAMES WALLACE.”
    Azzd at the same tizne plaintiff took possessiozz of certain articles of personal property covered by the chattel mortgage zzpon azi agreed valuation of $350, which was indorsed upon the note of $512.54; and simultaneously with that the plaintiff, as a paz-t of the consideration for the property purchased, took up azzd paid a note given by Jaznes Wallace azzd Earl -Hazaz*d to one Prindell of about fifty dollars and the interest thereozz, and ozi the 6th of Decenzbez-, 1886, Jaznes Wallace znade, executed and delivered to Edgar I. Bishop a bill of sale of the other articles of personal property described in the complaint, taking from Bishop his promissory note for $102, payable in a year, which was subsequently paid at maturity by Bishop. Bishop made an oral arrangement for the purchase of the personal property and also for the purchase of the farm, and on the third of February he made a written agreement for the purchase, and on the third of March the plaintiff conveyed to him by deed the farm, Bishop taking possession of the same in March, 1887, under his deed. George King and another recovered a judgment January 10, 1887, issued an execution which was levied upon the property described in the complaint, and the same was sold for the sum of $122.06; on April 24, 1889, Bishop assigned his interest in the property sold, or his right of action for the same, to the plaintiff.

      T. K. Fuller, for the appellant.

      Fra/nMin Fierce, for the respondent.
   Hardin, P. J.:

Plaintiff was called as a witness in his own behalf and stated that Hazard left the premises in October, 1886, before the giving of the bill of sale and before the levy; and the plaintiff stated that before he left he came to his house and spoke to him upon the subject of leaving. When the witness was asked what Hazard said in that interview the defendant objected and excepted, and thereupon the counsel for the plaintiff allowed that by the evidence he wanted “ to show whether he delivered possession or not; ” and thereupon the court intimated that the witness might answer, and he did state as follows: He said that he was going over the lake to drive stage and he would not stay on the farm any longer; and he gave me possession ; I let him have the team to move him there.” We think no prejudicial error was committed by receiving the evidence.

In Hardenburgh v. Crary (60 Barb., 32), the actual occupation of the premises which were the subject of dispute was directly in issue; here the question of who was in occupation of the farm, or how the possession of the farm was given up, rose incidentally.

We think the opinion of Denio, Ch. J., in Knapp v. Smith (27 N. Y., 281), supports the ruling made by the trial judge; he says, viz.: “ Trask, a witness examined for the plaintiff, was asked whether she had been in the possession of the farm since the deed to her, and the defendant objected that the inquiry called for an opinion on a question of law. The objection was overruled, and the witness answered that they, the plaintiff and her husband, had been on the place ever since. I do not perceive any well grounded objection to the question, but the answer was a statement of' a simple matter of fact, and one in respect to which, upon the whole case, there was not the slightest question.”

(2.) Nor do we think it was error to receive the testimony of the plaintiff to the effect that he had made an arrangement with Bishop to sell him the farm and personal property for $4,000, after' Hazard had left the farm and before the plaintiff purchased the personal property; nor in refusing to strike out the evidence after the same had been given.

(3.) When Earl Hazard was upon the stand as a witness he said that he left the farm about the middle of October, 1886, and that on the morning that he left he saw the plaintiff. He was then asked to state What did you say to him about giving up possession of the premises ? ” This was objected to and the objections were overruled, and the defendant excepted. The witness answered: I said to him that I was going away and he had better see about his property; I was going away; going to move off from the place, and I asked him that morning for his wagon to move with ; I said, you had better see to your property, I shall not have anything more to do with it; I went away that day; I left the stuff there with James; I didn’t disturb any of it.” We see no error in receiving this evidence which would warrant us in disturbing the ruling.

(4.) The ruling at folio U2 seems to have been placed upon the ground that the question asked for the contents of the note, and the objection was taken in effect that the note was the best evidence. We see no error in the ruling.

(5.) Nor do we think it was error to allow the witness John Wallace to state that, at the time Hazard went away, he, in a conversation held with James, stated that “ he would leave the property in my hands, and I could dispose of it, pay the debts and do what I liked with it.” We think it was competent to prove parol authority in that manner, which was obviously the purpose for which the evidence was received.

(6.) We see no error in limiting the inquiry to the witness Geoi'ge King, as to the conversation he had had with the plaintiff on an occasion in a settlement of “ his own matters.” Apparently nothing was excluded which bore upon the issue between the parties in this action.

(Y.) After the trial judge had, in a very elahoi’ate and careful charge, commented upon the questions of fact for the consideration of the jury upon the evidence, several requests were made to him by the counsel for the respective parties. Among them, at the instance of the defendant, he charged as follows ? “ If the jury find, from the evidence, that the property in question was in the actual possession of one of the defendants in the execution when levied upon and sold by the constable, the sale to the plaintiff is presumptively fraudulent under the statute as against the creditors of the vendor, and it requires satisfactory proof of good faith to overcome that presumption.” He also charged : “ If the jury find, from the evidence, that the plaintiff had knowledge of the indebtedness of James Wallace and Hazard to the King Brothers, and took this bill of sale to enable James Wallace and Hazard to cheat, hinder and delay their creditors, and such sale was merely a wash between the parties to it, to accomplish that purpose, such a sale is void under the statute.” He also charged: “ The burden would be upon them if there was no delivery or actual and continued change of possession.” And he also charged: “Where the seller retains possession of the property after the sale, the rights of the buyer, as against creditors, depend on the honesty and fairness of the transaction.” He also charged: “ That the statute of frauds is imperative that a sale of chattels must be accompanied by a continued change of possession to avoid the presumption of fraud.” And he also charged : “ That the fact that an adequate consideration was paid by the vendee upon a sale of goods, unaccompanied by immediate delivery and actual and continued change of possession, is not conclusive evidence that the sale was made in good faith and without intent to defraud the creditors of the vendor.” And he also charged : “ That where a sale of goods and chattels is not accompanied by immediate delivery or followed by an actual and continued change of possession, the presumption of fraud raised by the statute in such case makes that question one of fact for the jury, although the evidence as to good faitli and absence of intent to defraud is uncontradicted.” In yielding to the last request, the judge observed: I charge that. Uncontradicted by direct evidence, I suppose you mean; ” to which the counsel for the defendant responded, “Yes, sir;” thereupon the court observed, “I charge that.” Then the plaintiff’s counsel propounded to the court a request in the following language, viz.: That even though the jury should find that there was no change of possession, if the plaintiff and the plaintiff’s assignor paid an adequate consideration for the property, the burden is upon the defendant to show that there was fraudulent intent.” The court responded, “'Yes, I charge that.” Exception was taken by the defendant. In considering the question made upon the charge as given by the trial judge, it must be borne in mind that “ an appellate court will not seize hold of isolated portions of a charge for the purpose of discovering error. If the charge, as a whole, conveys to the jury the correct rule of law upon a given question, the judgment will not be reversed.” (Caldwell v. N. J. Steamboat Co., 47 N. Y., 282; People v. Dimick, 107 id., 26.)

Section 6 of title 2 of the Revised Statutes (vol. 3 [7th ed.J, 2328), which provides: “ Every sale made by a vendor of goods and chattels in his possession, * * * and every assignment of goods and chattels, by way of mortgage or security, * * * unless the same be accompanied by an immediate delivery, and be followed by an actual and continued change of possession of the things sold, mortgaged or assigned, shall be presumed to be fraudulent and void as against the creditors of the vendor, or the creditors of the person, making such assignment, * * * and shall be conclusive evidence of fraud, unless it shall be made to appear, on the part of the persons claiming under such sale or assignment, that the same was made in good faith, and without any intent to defraud such creditors or purchasers,” was referred to by the learned trial judge, and the substance thereof stated with clearness and accuracy to the jury. When he yielded to the request made by the plaintiff he doubtless did so in deference to section 5 of title 3 of the Revised Statutes (3d vol., 2330), which provides as follows: “ The provisions of this chapter shall not be construed, in any manner, to affect or impair the title of a purchaser for a valuable consideration, unless it shall appear that such purchaser had previous notice of the fraudulent intent of his imme■diate grantor, or of the fraud rendering void the title of such grantor.” By section 4 of title 3 it is provided, viz.: “ The question of fraudulent intent in all cases arising under the provisions of this chapter shall be deemed a question of fact, and not of law ; ” * * *

In considering the requirements found in section 5 of title 2, quoted above, in Stimson v. Wrigley (86 N. Y., 336), Finch, J., says: “ To permit a continued possession in the vendor encourages transfers of mere title to defeat creditors, while the debtor’s beneficial use of the property leaves him practically the owner and tends to give him a credit to which he is not entitled. As an honest purchaser buys because he wants the property and its possession and, therefore, naturally and usually takes it, the absence of this fact indicates some purpose different from that of an honest purchaser and requires proof of good faith and honest intention.” These remarks furnish a sensible explanation of the provisions found in section 5, where it is declared that a sale “ unless the same be accompanied by an immediate delivery and be followed by an actual and continued change of possession, of the things sold, mortgaged or assigned, shall be presumed to be fraudulent and void as against the creditors of the vendor * * * and shall be conclusive evidence of fraud.” By virtue of this statute every sale of property not followed by a change of possession is to be presumed fraudulent and void. That presumption remains and continues, and the non-change of possession becomes conclusive evidence of fraud, unless it shall be made to appear on the part of the persons claiming under such sale or assignment that the same was made in good faith and without any intent to defraud such creditors or purchasers. To avoid the force of the presumption; to avoid the “ conclusive evidence of fraud” found in the omission to change possession, the burden is cast upon the vendee to make it appear that the purchase by him “ was made in good faith and without any intent to defraud such, creditors or purchasers.”

Bradish, President, in Hanford v. Artcher (4 Hill, 301), in dealing with the presumption and “ the evidence ” mentioned in the statute, suggests that it has been claimed “ that the vendee or assignee of chattels, leaving them in the possession of the vendor or assignor, is in itself fraud.” He combats that idea and insists that what the statute does “ is to raise a presumption of fraud, which becomes conclusive, unless good faith and absence of intent to defraud be made to appear; ” and then he adds: “ But if the sale or assignment be shown to have been mad'e in good faith and without any intent to defraud, the presumption of fraud raised by the statute is fully rebutted. There can be no presumption of fraud in a transaction which has been proved to be without fraud.” And at page 319 of the same opinion it is stated in regard to the statute, viz.: “1. It has abolished the distinction sometimes attempted to be drawn between- absolute sales and conditional assignments, and thus avoided the question whether continued possession' in the vendor or assignor be consistent or inconsistent with the deed. 2. It declares what shall rebut the evidence of fraud raised by the statute from a want of change of possession, viz., good faith and absence of intent to defraud. 3. It throws the burden of proof of such good faith and absence of intent to defraud upon the party claiming under the sale or assignment. 4. It declares the question of fraudulent intent to be a question of fact, and not of law. "x' * * The statute very properly throws the burden of proof on the party claiming under the sale or assignment, and while it prescribes what shall rebut the evidence of fraud raised by the statute, and submits that as a fact to be determined by the jury, it leaves the court in the unimpaired possession and exercise of all its proper ¡rrerogatives of deciding upon the legalhy, competency and relevancy of testimony, but not upon its weight and sufficiency on a question declared by the statute to be one of fact. These belong properly to the jury.”

In Griswold v. Sheldon (4 Comst., 592), in referring to a charge delivered upon questions arising under the statute referred to, Bronson, J., said: “Instead of telling the jury that the mortgage was not void in law, he should have told them that, because the possession was not changed the mortgage was presumed in law to be fraudulent and void as against creditors and bona fide purchasers. Such is the rule of the common law, and such are the words of the statute (2 R. S., 136, § 5); and instead of telling the jury that they must pass upon the question whether the mortgage was made to defraud the creditors of Burdick, thus, in effect, leaving the onus of proving the fraud upon the creditor, he should have told the jury that the law presumed the fraud, and cast the burden of disproving it upon the person claiming under the mortgage. Such is the plain declaration of the statute. * * * They should not be left to find that there is no fraud, because there is no direct evidence of that fact; but they should be told that fraud is presumed from the fact of unchanged possession, and that this evidence of fraud is conclusive, not such evidence as they may disregard, but, in the words of the statute, ‘ conclusive evidence,’ unless the person claiming under the conveyance has proved that the same was made in good faith, and without any intent to defraud.”

In Waterbury v. Sturtevant (18 Wend., 363), Senator Edwards, in dealing with a question of fraud, observed: “ I admit that if property is sold for the purpose of preventing or delaying the collection of a debt, and the purchaser, knowing the fact, makes the purchase for the purpose of aiding that intent, the sale is fraudulent, although a fair consideration has been paid. The question of fraud depends upon the motive of the parties, the purchase must be bona fide as well as upon a valuable consideration.”

In Billings v. Russell (101 N. Y., 226), the case of Waterbury v. Sturtevant (supra), was referred to with approval in the opinion of Huger, Ch. J. It was held in Billings v. Russell, “ the fact that a mortgage was given, or it seems that property was transferred, by a debtor for a valuable consideration, is not, as a proposition of law, inconsistent with the existence of an intent on the part of the debtor to defraud his creditors, or of such knowledge thereof on the part of the mortgagee or purchaser as will avoid the mortgage or conveyance, and in this regard no distinction can be made between the consideration furnished by an existing debt and that arising in any other manner. When there is an actual intent to defraud, no form in which the transaction is put can shield the property transferred from the claim of creditors. Proof, therefore, that a mortgage executed by an insolvent debtor was given to secure a debt actually owing by the mortgagor does not, as matter of law, disprove the existence of a fraudulent intent on the part of the debtor.” In the course of the opinion in that case the chief judge observed: “We are of the opinion, however,-that the fact of the payment of a valuable consideration upon a transfer of property is not, as a proposition of law, inconsistent with the existence of an intent to defraud, and that, in the application of this principle, no distinction can be made between the consideration furnished by an existing debt or one arising in any other manner. It is undoubtedly evidence, and usually strong evidence, of the intent with which the conveyance is made, but is simply a circumstance to be considered by the court in determining the question of intent. The statute itself declares all conveyances made with a fraudulent inteint absolutely void, except in the case of those made upon a good consideration and in ignorance on the part of the purchaser of the fraudulent design of his grantor. It contains, therefore, the strongest implication that the payment of a valuable consideration is not inconsistent with the existence of an intent to defraud, and of such knowledge, on the part of the purchaser, of the fraudulent design as will avoid a conveyance made to him, even though accompanied by the payment of an adequate consideration. The vice in the argument of the court below, if any there is, seems to be in its assumption that the mere payment of a good consideration by the vendee, upon the transfer of property by an insolvent debtor, as matter of law, disproves the existence of a fraudulent intent in such a transaction.” At the conclusion of the opinion from which the above quotations have been made it is said, viz.: “ From this review of the authorities it seems clear that, where there is an actual intent to defraud, no form in which the transaction is put can shield the property so transferred from the claims of creditors, even though a full and ' adequate consideration be received for the same.” Here we have a case of the non-change of possession; and that fact, by virtue of section 5 of title 2, gives rise to the presumption 'that the sale was fraudulent and void; and it is also “ conclusive evidence of fraud,” by the very terms of the statute, unless it is “ made to appear ” on the part of the plaintiff, who is the person “ claiming under such .sale or assignment, that the same was made in good faith and without any intent to defraud such creditors or purchasers.” The onus of making it appear that the purchase was “ in good faith, and without any intent to defraud,” was upon the plaintiif. The burden of giving proof that should answer the requirements of the statute was upon the plaintiff, and continued with him throughout the trial.

In Tilson v. Terwilliger (56 N. Y., 213), which was a case where there was not an immediate and continued change of possession under a bill of sale, it was said by Folger, J., on page 276: “The statute is imperative that' the sale must be followed by a continued change of possession or it shall be presumed to be fraudulent. It is, then, upon the vendee to make it appear that the transaction was in good faith and with no intent to defraud. This is a question for the jury; and whatever other rules of law there may be, in our judgment, it should in this case have been submitted to them. Here was a presumption in favor of the defendants, growing out of the possession found in the vendor. Against this was the testimony of the vendee alone. His credibility in such a position was in issue. We do not think that when there is on one side the presumption •against the legality of the transaction which the statute makes, and on the other the vendee seeking, by his own oral testimony alone, to repel that presumption, that the matter may be taken from the jury •and passed upon by the court as a question of law.”

In making out the affirmative of the proposition resting upon the qfiaintiff, proof of payment of adequate consideration undoubtedly Avas strong evidence, persuasive evidence, for the consideration of the jury, but as the statute in its fourth section has provided that questions of fraudulent intent arising under the statute shall be deemed questions of fact, and not of law, it is not within the province of the court to hold, as matter of law, that the proof of the consideration, adequate and abundant though it be, was sufficient to establish that the purchase by the plaintiff was “ made in good faith and without any intent to defraud ” the creditors of his vendor.

Mr. Stephens, in his Digest of the Law of Evidence, states in article 93, at page 152: “ Whoever desires any court to give judgment as “ to any legal right or liability dependent on the existence ■or non-existence of facts which he asserts or denies to exist, must prove that those facts do or do not exist.” With that rule before us, it may be observed that the plaintiff sought the verdict of the jury to the effect that his purchase was made in good faith and without .any intent to defraud, which facts he was required to prove to overcome the presumption of fraud and the “ evidence of fraud ” furnished by the non-change of possession of the property purchased; .he was required to prove his good faith, and that his purchase was '“ without intent to defraud.”

' Mr. Stephens also says, in article 95, page 153, that the “burden of ■proof in any proceeding lies at first on that party against whom the judgment of the court would be given if no evidence at all were produced on either side.” * * * Applying the rule to the case* in hand, it may be observed that the judgment of the court would be given, if no evidence at all were produced after the fact appeared that there was not a change of possession of the goods purchased,, against the plaintiff. The plaintiff, therefore, took the burden and must carry “ through the case the burden of the facts he is bound to prove.”

In Siedenbach v. Riley (111 N. Y., 560; S. C., 20 N. Y. St. Rep., 121), Earl, J., in dealing with the effect of a non-change of possession, said, viz.: “ Here, as we have before stated, the jury were authorized to find that this sale was not accompanied by an immediate delivery, and followed by an actual and continued change of possession of the property sold. And here the presumption that it. was fraudulent and void as against creditors was conclusive unless-the plaintiff made it to appear that the sale was made in good faith, and without any intent to defraud creditors. The burden was upon• him to make this appear, and we are of opinion that there was evidence from which the jury could find that the plaintiff had failed to show that the sale was in good faith and without any intent to-defraud.”

We think the sense of the charge complained of was to the effect that, after the jury had found that there was no change of possession,, and after they had found that the plaintiff and his assignor “paid an adequate consideration for the property, the burden is-upon the defendant to show that there was fraudulent intent.” Such, a charge, in effect, as a ruling, as a matter of law, is, that proof of an adequate consideration overcomes the presumption that the purchase is fraudulent and void; overcomes the evidence of fraud which arose from the non-delivery of possession of the property, and relieves the plaintiff from the burden cast upon him by section 5, to-make it appear on his part that the sale was “made in good faith and without any intent to defraud the creditors of his vendor.”

Our attention is called to Leach v. Flack (31 Hun, 606) in aid of' the contention of ¡the plaintiff. In that case the referee in the court, below had refused to sustain the ownership of the plaintiff in certain, property purchased by her of her son under a bill of sale by reason, of the non-change of possession. “ Although he also found the fact to be established by the evidence that the plaintiff was no party to-the fraud, but received the bill of sale without notice of her son’s-embarrassment in business and without any intention to hinder, delay or defraud any of the existing or subsequent creditors of the vendor.” He also found that she had no knowledge of any inten- ■ tion on his part to deceive or defraud any of his creditors.” And after such findings of fact were made it was held by the court that-to deny her the right of recovery was erroneous, following the law as laid down in Dudley v. Danforth (61 N. Y., 626). In the latter-case the referee had found “ that the purchase and sale was made in good faith for the purpose of paying to plaintiffs an honest debt owed by Edget to them; ” and it was held that after such a finding-of fact made it would be unavailing to find that the transfer was-made with intent on the part of Edget to hinder and delay his-creditors, and that the plaintiffs had previous notice of such intent on the part of Edget,” “ without a- further finding that plaintiffs-participated in such intent.” We see nothing in the case which reaches the question involved in the case in hand.

In Starin v. Kelly (88 N. Y., 420) it appeared that the plaintiff' before levy “ purchased the property of Besson, and that at the time of the levy he had the property in his possession,” and the questions of fact were found in favor of the plaintiff; and the only questions of law determined in the case related to the rulings upon the trial, and under the issue in that ease it was said, viz. : “ To maintain the issue, on. the part of the defendant it was sufficient for him, in the first instance,, to show Besson’s fraudulent intent in making the sale. Then it was for the plaintiff to show that he purchased the property for a valuable-consideration. His title would then be unimpeachable unless the defendant should make it appear that he had previous notice of' Besson’s fraudulent intent and that he participated in the fraud. * * * In Waterbury v. Sturtevant (18 Wend., 355), it was held that the question of fraud in such a case may - depend upon the-motive of both parties; that the purchase must be bona fide as well as-upon a valuable consideration; and that the fraudulent intent of the grantee may be inquired into was also decided in 43 Barbour, 448.” We think the ease does not support the contention of the plaintiff.

Our attention is called to Mitchell v. West (55 N. Y., 107), where it was held that a purchaser, under a bill of sale, “ unaccompanied by delivery and change of possession, is not required by the statute of frauds (2 R. S., 136, § 5) to show, as against the creditors of the vendor, in addition to the proof of, or in order to establish the Iona fides of the sales, that there was a valid excuse for leaving the property in the vendor’s possession.” In that case it was claimed “ that in addition to proof that the sale of the chattels was bona fide, and that there was no intent to defraud the creditors of the vendor, it was necessary to show some valid excuse or reason for leaving the property in his possession.” The court held that such excuse or reason need not be shown, following the memorable decision in the Court of Errors in Hanford v. Artcher (J Hill, 271). It is said by the learned counsel for the appellant, that if the intent •of the plaintiff and his assignor was honest in- purchasing the property, it makes no difference whether there was any change ■of possession whatever ; ” but, as we have already seen, the question of the intent of the plaintiff is one of fact, which must be left for the jury to determine; and when the want of change of possession •appears in a case, then the statutory presumption is against the plaintiff, and the burden is upon him to relieve himself from the presumption furnished by force of the statute by the non-change •of possession. Possibly the trial judge may have been of the •opinion that there had been a change of possession; but, upon the evidence given upon that subject, it was his duty, in obedi•ence to the requirements of the provisions of the statute, that questions arising thereunder should be regarded as questions of fact, and not of law, to submit that question to the jury; and the same ■duty remains with this court to regard the question as a question of fact, and not a question of law, and, therefore, it is not appropriate for "this court to assume that an erroneous instruction to the jury on the .subject of the burden of proof may not have influenced the jury in reaching a verdict adverse to the defendant. We think the instruction was erroneous, and by reason thereof the verdict should not be .allowed to stand.

Martin, J., concurred; Merwin, J., dissented.

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


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    CHARLES RYAN, by ELIZA RYAN, Guardian ad Litem, Respondent, v. PORTER MANUFACTURING COMPANY (Limited), Appellant.

      Negligence — effect of continuing in the master’s employment after knowledge of defects in a floor — evidence as to complaints made by the injured pa/rty — practice of reading law to the jury.

    , In an action brought to recover damages for the alleged negligence of the defendant in the construction of a floor in its boiler shop, which, in consequence thereof, gave way causing some material to fall upon the plaintiff, an employee of the defendant, and breaking his leg, it appeared that the plaintiff had been in the employment of the defendant, at the time of the injury, for about eight, months, and had had an opportunity to see how the floor and its foundation were constructed; that at the time of the accident he was engaged with others in bringing sheets of boiler iron, weighing about 290 pounds per sheet, into the shop and piling them upon a table.

      Held, that, under the circumstances of this case, the court was properly requested to charge the jury: “ That if the plaintiff was capable of and had the opportunity, by knowing thereof prior to the accident, of judging of the propriety of the form of construction of defendant’s floor, then, having continued in its employ, he cannot recover.”
    Upon the trial the plaintiff’s mother was called as a witness and testified: “His suffering was bad; very hard; I guess I know; he complained of great suffering, I was up day and night with him.” She was thereupon asked: “Well, com_ menee at the early part, just as he was placed in bed and being taken home, and state what complaints of bodily pain he made, or what you observed as to his condition of suffering;” and, under objection, testified: “Well, he complained of his back, in the first place, and pain in his leg.” Q. “What complaint did he make? Tell the jury, so that they can hear you, how bad he suffered.” A. “Well, he complained many times that they hurt him so that he did not know that he could live through it,” etc.

      Held, that the evidence, so far as it related to statements made long after the accident, was not competent.
    The practice of counsel in reading the law to the jury, condemned.
    Appeal by tbe defendant, the Porter Manufacturing Company (Limited), from a judgment of the County Court of the county of Onondaga, entered in the office of the clerk of the county of Onondaga on the 18th day of May, 1888; and also from an order of the said County Court denying a motion, made upon the minutes of the court for a new trial, and entered in said clerk’s office on the 18th day of May, 1888.

      The action was tried before the court and a jury, and a verdict was rendered in favor of the plaintiff for $150, damages claimed to have resulted from the alleged negligence of the defendant in so constructing a floor in its boiler shop, in Syracuse, that the leg of a table crushed through it, thereby causing some boiler sheets to slide off of the table and strike plaintiff, one of defendant’s employees, breaking his leg and causing other injuries to him.
    The defendant denied any negligence on its part and alleged that plaintiff was fully acquainted with the construction of the floor and assumed all the risks incident thereto, and to the work at which he was engaged at the time of the accident; and also alleged that the plaintiff and his co-employees directly contributed to the accident by their negligence in improperly loading the table. The building where the accident occurred had been built about a year preceding the occurrence, •and the ground enclosed by the building was uneven, and a contract .had been made by the defendant with one Martin to fill in and level up the ground, and also a subsequent contract to build a floor. Martin was a contractor and capable builder, and was entrusted with entire ■ charge of the work, and he proceeded to level up the place with dirt and ashes and to lay on top of them a hemlock plank, two inches thick upon stringers four by four, and four feet apart, ashes being back of .and around the stringers. In March, 1881, the floor and foundation, where the injuries were received, were placed. The latter flooring .and foundation were -built under a contract made by the defendant with one Fairchild who had had experience in such matters, and whose competency was not questioned upon the trial. The form and method of construction, including the foundation underneath, .and the selection of workmen and material were left to his judgment and skill. Plaintiff had been in the employ of defendant, at the time of the injury, for about eight months, and had been about the floor with opportunity to see how the floor and foundation were constructed. When the injury occurred he and five co-employees were bringing sheets of boiler iron, weighing about 290 pounds per sheet, from the yard into the shop and piling them on a “ laying out table; ” this table had a top about seven by three and one-half feet and was supported by four legs, each about four by six inches at the base where they rested upon the floor, in plain sight of the plaintiff and his co-employees. The sheets were not piled evenly upon tbe table, and their attention was called to it, but they continued to pile the iron as before, although some evidence indicates that the floor had begun to sag, and that fact was noticed, and although there were other tables on which the sheets might have been piled. After an accumulation of about thirty-five sheets had taken place one leg of the table crushed through the plank, and the iron slid off and the plantiff received the injuries complained of. Upon the leading questions of fact involved in the case the evidence was quite extensive and considerably conflicting. A verdict had been obtained in a former trial in favor of the plaintiff, and the judgment entered thereon was brought into this court and reversed on account of erroneous rulings made at the trial.

      FramJc, H. Hisooek, for the appellant.

      Thomas Hogan, for the respondent.
   Hardin, P. J.:

(1.) It appears that after the plaintiff received the injuries he was taken home and placed in bed. His mother, who was called as a witness, testified, viz.: “ His suffering was bad, very hard; I guess I know; he complained of great suffering; I was up day and night with him.” Thereupon the following question was propounded to her: “ Q. You may state what complaints of bodily pain he made ■during the time he was confined in bed, if any ? ” This question was objected to as immaterial and improper and inadmissible. Thereupon the court remarked: “ The question is too broad.” Then the plaintiff propounded the following question: “ Q. Well, commence at the early part, just as he was placed in bed and being taken home, and state what complaints of bodily pain he made, or what you observed as to his condition of suffering ? ” Similar objections to those already stated were made to this question and they were overruled, and the defendant took an exception. The witness answered : “A. Well, he complained of his back in the first place, and pain in his leg.” Thereupon the defendant moved to strike the evidence out. The court denied the motion and the defendant took an exception ; and thereupon the plaintiff propounded the following question: Q. What complaint did he make ? Tell the jury so that they can hear you, how bad he suffered. A. Well, he complained many times that they hurt him so that he didn’t know that he could live through it.” The defendant moved to strike out the evidence upon same grounds, as stated in last objection.” The motion was denied and tbe defendant excepted. The witness stated that he was taken up and helped on the lounge Christmas morning.”. Thereupon the following question was propounded to her : “ Now, did he complain of suffering during that time ? ” The answer was, “ Yes, sir, not much; not as much as he had nine or ten days the worst of his suffering; the first nine or ten days were the worst of his suffering.”

In Olp v. Gardner (48 Hun, 169), in an action which was brought to recover damages for injuries sustained by the plaintiff, her husband was allowed, against the objection and exception of the defendant’s counsel, to testify as to complaints made by his wife after the day of the accident, of being dizzy headed, of a great roaring in her head and of pain in the back of her eyes. Held, that the evidence should not have been received. * * * The evidence of statements made long after the injury as to the effect of the injury, or as to the sufferings endured therefrom, is not competent.” In delivering the opinion the court refers to Roche v. Brooklyn City, etc., Railroad Company (105 N. Y., 294), in which case the Court of Appeals held as follows: In an action to recover damages for alleged negligence causing a personal injury, declarations of the party injured, made some time after the injury, simply to the effect that he is suffering pain, when not made to a physician for the purpose of professional attendance, are not competent as evidence.” We think the rulings made by the trial judge, tested by the cases to which we have just referred, were erroneous.

Respondent calls our attention to Hagenlocher v. The Coney Island and Brooklyn Railroad Company (99 N. Y., 136). As we understand that case, it is only an authority for holding that it is “ competent for plaintiff to prove exclamations, indicative of pain, made by such person at the time of the injury.” We think it does not justify all the evidence which was received in the case before us. Our attention is invited to Lewke v. Dry Dock, etc., Railroad Company (46 Hun, 286), where a witness was permitted to testify that he “ saw the plaintiff picked up from the spot where he received the injury. The plaintiff then came to his store and the witness noticed the condition of his clothes, and that his left leg seemed to be swelling. It was at this time that he complained of pain in the limb.” And it was stated by the court in this case, viz.: “ And it would seem that the complaint in the present case, made so soon after the accident, and while the plaintiff’s injured leg was visibly swelling, was so closely allied to mere exclamation as to justify the reception of the evidence.” If we were to give full effect to all that was decided in this case, it would not justify the reception of all the evidence received in the case before us. The opinion contains no-reference to Roche v. Brooklyn Railroad Company (supra). In the latter case Peckham, J., said: Her declaration that it pained her very badly is mere hearsay and should not have been permitted.” Applying that rule to the case before us, we think some of the evidence given by the plaintiff’s mother was inadmissible and erroneously received.

(2.) The case states, viz.: “ During his summing up to the jury counsel for the plaintiff stated to the jury that he would read to them the law applicable to this case, as it had been laid down by the Court of Appeals, and commenced to read to them authorities.” Thereupon the counsel for the defendant objected. The court permitted the authorities to be read, and the defendant took an exception thereto. While we do not propose to examine the question involved in the exception, and place our decision upon the ruling made in respect to the right of counsel to read authorities to the jury, we may observe, in passing, that it was the duty of the trial court to instruct the jury as to the law of the case, and we may call attention to the appropriate remarks of Brady, J., in Lesser v. Perkins (39 Hun, 343), in dealing with a similar question. He says: The practice of reading to the jury, as done here, has been condemned by a number of adjudged cases. (People v. Anderson, 44 Cal., 70; Tuller v. Talbot, 23 Ill., 357; Sprague v. Craig, 51 id., 288; Reich v. Mayor of the City of New York, 17 Week. Dig., 141; Allaire v. Allaire, 39 N. J. Law Rep., 113; Koelges v. Guardian Life Lns. Co., 57 N. Y., 638.) Perhaps in this State it may be done where the matter read is the law of the case, and can by no possibility prejudice the adverse party. (Koelges v. Guardian Life Ins. Co., supra.) But, nevertheless, it must be said that it is a custom more honored in the breach than in the observance, and, further, should not be allowed as long as the jury are required to accept for their guidance the legal rules pronounced by the court. If a counsel desires to call the attention of the court to rule, doctrine or maxim, and to illustrate by treatise or adjudication, it is proper to do so; but the jury, if addressed on the subject by counsel, may confuse the instruction and the reading and thus obstruct, if they do not defy, the administration of justice.” The observations made by the learned judge meet with our approval, and accord with the general practice which has come under our observation.

(3.) Defendant requested the court to charge the jury, viz.: “ That if the jury find it was negligent for Dee, plaintiff’s foreman and co-employee, to continue piling up iron on the table in question after he saw the floor sag thereunder, and that such negligence caused the accident, then plaintiff cannot recover.” The court refused to give the charge as requested, but did charge the same, adding thereto the words: “ Provided defendant had performed its duty in the construction of the ground work and floor in question.” The defendant also asked the 'court to charge: That if the jury find that plaintiff, prior to the accident, knew of and appreciated the manner in which defendant’s floor was constructed, then he assumed the risk of the defect, if any, and its construction.” This request was refused and the further request was made: That if the plaintiff was capable of and had the opportunity by knowing thereof, prior to the accident, of judging of the propriety of the form of construction of defendant’s floor, then, having continued in its employ, he cannot recover.” This request was refused.

In Shaw v. Sheldon (108 N. Y., 668) it was said by the Court of Appeals, viz.: “ The majority of the court are of opinion that this judgment should be reversed for the reason that the facts established, beyond dispute, that the injured employee entered upon the service and remained in it with a full knowledge and appreciation of the risk and danger resulting from leaving the couplings uncovered. The fact was entirely obvious, the resultant peril plain at a glance, and the injured servant, a skilled workman, a foreman of the roUers} accustomed to the machinery and the service and having the capacity and ability to fully appreciate the consequences of leaving the couplings uncovered. Within the rule applicable to such cases, the plaintiff’s intestate took upon himself the risk of injury from the observed and obvious omission.”

¥e think the trial judge did not keep within the principle laid down in the case from which we have just quoted, and the judgment and order should be reversed on the exceptions and a new trial ordered in the County Court of Onondaga county, with costs to abide the event.

Martin and Merwin, JJ., concurred.

Judgment and order of the Onondaga County Court reversed on the exceptions and a new trial ordered, with costs to abide the event.