author: Ingraham, J.

text:
    WILLIAM WATSON, et al., as Trustees, &c., Respondents, v. THE MANHATTAN RAILWAY CO., et al., Appellants.

      Equity action, trial by jury error— Waiver of right to demand trial by court, what not—Character of action, how determined—Judgment not authorized by verdict.

    An action in equity involving a claim for damages as incidental to the equitable relief asked for, was brought on to trial before a jury; after the plaintiff had opened the case, defendant moved that the cause be stricken from the calendar, and ordered to be tried at special term as an equity case, which motion was denied and exception taken. The trial proceeded, and resulted in a verdict for plaintiff. Held, that the denial of the motion was error, for which this judgment entered on the verdict should be reversed.
    Where the allegations of a complaint are such as that by waiving the claim to equitable relief, the plaintiff has left an action for damages solely, which waiver may be made at the trial, and in case it is made, the action would be triable by jury,'—defendant is in time with his demand for a trial by the court, if he makes it as soon as it becomes apparent by the opening of the case that plaintiff intends to insist on his claim for equitable relief. The fact that one of the defendants, after plaintiff had- noticed the cause for trial at a jury term, also noticed it for trial at the same term, is not a waiver.
    The character of the action is determined by the allegations of the complaint, and the nature of the relief demanded. Where the allegations of the complaint are such as would entitle the plaintiff to equitable relief, and he prays for the equitable relief to which those allegations would entitle him, it is an equity action, although under the same allegation he is entitled to damages as incidental to the equitable relief, and pirays for such damages.
    Where an equity case is tried before a jury, and their findings with the facts admitted in the pleadings, do not cover all the issues, the case must be brought to a hearing before the court at a special term, when the court may or may not adopt the finding of the jury, and other facts may be proved, and the court must make findings of fact and law.
    In the case at bar, plaintiff’s right to injunctive relief depended on the fact of the use, occupancy, or appropriation by defendant of his easement in the street. This fact was put in issue by the pleadings, and evidence bearing on it given by both sides. Held, that the verdict not having passed, and the court having made no finding on the issues, there was no authority for the entry of the judgment which was entered.
    Before O’Gorman and Ingraham, JJ.

      Decided March 10, 1886.
    Appeal from judgment in favor of plaintiff entered on the verdict of the jury, restraining the defendants from maintaining and operating an elevated railroad in certain streets in front of plaintiff’s premises, and for damages.
    The facts appear in the opinion.

      Davies & Bapallo, attorneys, and Julian T. Davies and Charles A. Gardiner, of counsel for appellants,
    on the questions decided, argued :—I. There has been a mistrial. The suit is in equity and not at law. The award of damages was . incidental to the grant of equitable relief, and the action was neither changed thereby from equity to law, nor did it become an action in both equity and law. The court erred in denying defendants’ motion that the action be stricken from the calendar and tried op the equity side of the court.

      First. The cause of action herein is the alleged wrong, “committed or threatened,” namely, the alleged continuous trespass ; and the fact that the trespass is continuous is the ground for equitable relief (Henderson v. New York C. R. R. Co., 78 N. Y. 430). There is no joinder of legal and equitable causes of action. There is but one cause of action, and that equitable, to restrain a continuing trespass (Henderson v. New York C. R. R. Co., supra; Watson v. Hunter, 5 Johns. Ch. 169 ; Milhau v. Sharp, 27 N. Y. 625 ; Ex parte Marsh, 1 Mad. Ch. Pr. 149 ; Lee v. Alston, 1 Ves. Jr. 81 ; McRea v. London, &c. Ry. Co., 37 L. J. R. Eq. 261; Corning v. Troy, &c. R. R. Co., 40 N. Y. 191; Mad. Ave. Bapt. Ch. v. Bapt. Ch., &c., 73 Ib. 95; New York Nat. Exch. Bk. v. Met. Ry. Co., &c., 53 Super. Ct).

      Second. The action, being purely equitable, could not be tried by a judge and jury sitting at a regular trial term of the superior court. It should have been tried at an equity term (§ 280, Code Civ. Pro.; Special Pule, 11, 16, of this court for the years 1883 and 1885 ; Court Pules, Hun, 315, 316 ; Bangs v. Duckinfield, 18 N. Y. 592 ; De Bussierre v. Holladay, 4 Abb. N. C. 121).

      Third. Defendants were not estopped by laches or acquiescence from moving that the case be stricken from the calendar and tried at special term as an equity case. (1) The proper place to raise such an objection is at trial before evidence has been offered (De Bussierre v. Holladay, 14 Abb. N. C. 111; Walker v. Spencer, 45 Super. Ct. 75 ; Burnham v. De Bevoise, 8 How. 159 ; 3 Wait’s Pr. 77). (2) The defendants are not estopped by acquiescence (People v. Albany & Susq. R. R. Co., 57 N. Y. 161 ; Wheelock v. Lee, 74 N. Y. 500). The defendants herein cannot “be deemed precluded by acquiescence,” by the “ mere technicality ” of having cross-noticed the issue for trial at a jury term.

      Fourth. The defendants would undoubtedly be precluded from insisting that this cause could not have been tried as a law cause before a jury, had the plaintiffs elected to proceed only for damages. Had the plaintiffs asked only for a general verdict on the theory of having sustained either permanent or continuing damages, and asked no equitable relief, there would have been no mistrial. The denial of defendants’ motion to send the cause to special term was a decision that the cause was to be tried and disposed of throughout as a law cause. Defendants frequently throughout the trial protested against the cause being tried otherwise than as one for the recovery of money only. Nevertheless, after this course on the trial, and after obtaining answers from the jury to specific questions, the court gave the plaintiffs equitable relief. This cause, therefore, has been treated by plaintiffs and the court as an equitable action, and the trial must be examined as that of an equitable action.

      Burnett & Whitney, attorneys, and Henry L. Burnett and Edward B. Whitney, of counsel for respondents,
    on the question decided, argued :—I. The action was properly tried by jury, from its nature, under the authorities. It was an action for a legal cause of action,—“ for a nuisance,”—and the authorities hold that asking equitable relief in addition does not take away the right of trial by jury (Hudson v. Caryl, 44 N. Y. 553 ; Dorr v. Dansville Gas Light Co., 18 Hun, 274 ; People v. Metropolitan Telephone and Telegraph Co., 31 Hun, 596). This action is not the less “ for a nuisance ” because the road, owing to its legislative authority, is not a nuisance quoad the public. A structure erected under statute may be in effect a private nuisance, although not a public nuisance (Wood Nuisances, § 757). A grant which legalizes an obstruction, as far as the public are concerned, and gives a summary remedy for the appraisal of the damage to private owners, does not take away any of the remedies given to the latter by the previous law (Crittenden v. Wilson, 5 Cow. 165). Statutes do not authorize the taking of private property without compensation. As against one whose property he has taken without compensation, the erector of a structure cannot be heard to repeat the familiar quotation that that which has legislative authority cannot be a nuisance. The injured party answers : “ The state has passed no such law, for it cannot; and what it cannot do, it certainly, in contemplation of law, has not done ” (Virginia Coupon Cases, 114 U. S. 270, 288). This railroad edifice is called an “ unlawful structure ” by the court in Taylor v. Metropolitan El. Ry. Co. (50 Super. Ct. 311), and it is on the ground that it is a nuisance that the lessor and lessee companies are suffered to be joined as defendants. Moreover, the right to jury trial, when equitable relief is sought, is not confined to actions “ for a nuisance,” but applies to any action where, on the same state of facts, legal and equitable, remedies are both proper (People v. Albany & Susquehanna R. R. Co., 57 N. Y. 161).
    II. Any objection to a trial by jury was waived by defendants. Even if defendants had a right, properly so called, to a special term trial, the right might be waived (Matter of Cooper, 93 N. Y. 507). But the practice of trying equity cases at special term implies no right in either of the parties. This is shown by the court’s power at any time on its own motion to send all the issues of fact to a jury (Code Civ, Pro. § 911). None of the cases concerning waiver of the right to jury trial are, therefore, in point here. That is really a right, and can be waived only as directed by the constitution of the state (Constitution, Art. I. § 2 ; Code Civ. Pro. § 1009). The defendants have waived their right to object by (1) Delay. The first objection to a jury trial was made two and a quarter years after the commencement of the action, after the jury was impaneled, the case opened, and a motion to compel election had been made by defendants, and denied by the court. (2) Positive acquiescence. The defendant, The Metropolitan Elevated Ry. Co., had itself noticed the case for trial term in September, 1883, and was thus distinctly estopped. Neither defendant returned plaintiffs’ notice of trial served in the same month for the same term ; and both defendants answered “ready ” from time to time from February to June, 1885. An objection was made by defendants to the reading of the affidavit setting forth these facts as “incompetent at this stage.” We have found no authority holding that an affidavit is incompetent on a calendar motion, even if the party sees fit to defer his motion till the midst of the trial.
    III. The objection being waived by defendants, it was proper to direct that the trial proceed. The question became merely one of convenience of the court. There was no inherent difficulty in trying the case before a jury. The right to an injunction depended upon the question, whether the injury was substantial or only nominal (People v. Metropolitan Telephone & Telegraph Co., 31 Hun, 596). If the jury should find substantial damages the court had but to enter judgment of injunction upon their verdict, unless some equitable defense were proved (Id.; S. C., 11 Abb. N. C. 304 ; Parker v. Laney, 58 N. Y. 469). It was necessary for plaintiffs to prove their title and the substantiality of the injury, in order to obtain any real relief, legal or equitable. These being proved, equitable relief followed almost as a matter of course, and there could be no need of any separate trial. Plaintiffs were entitled as a constitutional right to a trial by jury on the question of past damages at least. The course taken by the court was in the interests of justice by deciding the whole litigation at once. It was at most nothing more than an exercise of its general powers under section 971 of the Code.

       This does not apply to a partition action (§§ 970, 1544 Code Civil Procedure), or to any action of the character specified in section 970. —Reporters.

   By the Court.

Ingraham, J.

The complaint in this action demands judgment against the defendants, the Elevated Railroad Companies, for the sum of $80,000 as their damages already sustained; that defendant be enjoined and restrained from maintaining or operating said railroad ; and that the said defendants abate the use of, and remove said railroad and railway station in said street, in front of the land described in the complaint; or that said defendants shall be permitted to continue the existence and use of the said railroad and railway stations upon condition only that the plaintiffs shall first be paid the sum of $200,000, and that until such payment the said defendants be enjoined and restrained from the operation of the said railroad as aforesaid.

There is no allegation in the complaint that defendants had erected the said railroad structure, or operated and maintained the railroad thereon, without authority from the legislature, or that the acts of the defendants complained of, were other than those necessary for the proper use and operation of the railroad.

By the answer of the defendants, it appears that the erection and operation of the said railroad was duly authorized by the legislature of this state, and by the mayor, &c., of New York, and this does not appear to have been disputed upon the trial of the action.

The case was noticed by the plaintiffs for trial at a jury term of the court, and came on for trial at such jury term before the chief judge and a jury. The defendants, after the case was opened, asked that the plaintiffs be directed to elect whether they sue in this action for damages as for a continued trespass caused by a portion of the structure opposite their premises, and by running of trains thereon, or whether they sue for damages on the ground that a part of the easement of light, air, and access was interfered with when the road was erected and the trains began to run. That motion was denied, to which the defendants’ counsel excepted. The defendants’ counsel then moved that the case be stricken 'from the calendar and ordered to be tried at a special term, as an equity case. That motion was denied, and to that defendants’ counsel excepted.

The trial thereupon proceeded before a jury, and at the close of the evidence the court directed a general verdict for plaintiffs, and submitted to the jury certain specific questions as to the amount of damages sustained by the plaintiffs for the period during which the defendants’ railroad was in operation, and the value of the easement of air, light and access, so far as it was permanently taken by defendants.

Under such direction the jury found a general verdict for the plaintiffs, and answered the specific questions sub - mitted to them.

On the verdict plaintiffs moved for judgment as prayed for in the complaint, and defendants moved to set aside the verdict on various grounds. The defendants’ motion was denied, plaintiffs’ motion was granted, and a judgment entered entitled At a trial term of the court,” and reciting that the issues in the action had been brought on for trial before Mr. Justice Sedgwick and a jury at a trial term of the court, and the issues having been tried, and a written verdict for the plaintiffs having been rendered on October 14, 1885, on motion of plaintiffs’ attorney, it was adjudged that plaintiffs recover the damages found by the jury to have been sustained by the plaintiffs up to the time of the trial, from the operation and maintenance of the railroad structure, and enjoining and restraining the defendants from maintaining, or in any way using the elevated railroad structure ; that in case the defendants tender to plaintiffs for the purpose of execution by the latter, a conveyance to defendants of so much of plaintiffs’ easement in said streets as had been taken by defendants, and in case plaintiffs having executed the same and delivered it to defendants, said defendants shall pay to plaintiffs $15,000, with interest; or in case the plaintiffs shall not execute the said deed of conveyance when so tendered, then the injunction thereby granted shall not be in any way operative.

No finding of fact was made by the trial judge. The judgment was entered on the verdict of the jury. This the defendants claim was error.

Plaintiffs insist that the trial of all the issues before a jury was regular, for the reason that the action was an action to abate a nuisance, and that under section 968 of the Code, an issue of fact in such an action must be tried by a jury; the first question to be determined, is the nature of the action as shown by the complaint.

From an examination of the complaint in connection with the authorities in this state, we are of the opinion that the action must be held to be an equitable action to restrain the defendants from continuing to use and occupy with their railroad, the portion of the streets adjoining plaintiffs’ property. The character of the action is to be determined by the allegations of the complaint, and the nature of the relief demanded.

In this case, the allegations of the complaint are such as would entitle plaintiffs to an equitable judgment, enjoining the defendants from the unauthorized use of their property. In Henderson v. N. Y. Central R. R. Co. (78 N. Y. 423), the relief sought was first, damages ; second, the abatement of the use of the railroad, and the| removal of the tracks ; third, an injunction against run-' ning the trains, or, if the defendants are permitted to use the tracks, to do so only on condition that plaintiff should first be paid his damages. The action was sustained as an action in equity, the court saying that plaintiff had the right to invoke the restraining power of a court of equity to prevent a multiplicity of suits, and could of course recover his damages, as incidental to such equitable relief; and from that case and the cases cited by the court, it appears that the jurisdiction of equity in such cases is firmly established in this state, and that a court of equity, having once acquired jurisdiction, “ can proceed and give all the relief to which the plaintiff would in any action, and before any tribunal, be entitled.” The nature of the action, and the relief demanded therein are almost identical with the case at bar. The general term of this court in the late case of Clark v. Blumenthal (52 Super. Ct. 355), decided that the test of the method of trial is the nature of the demand for relief. In this case, the judgment actually entered after the trial by the jury was not a judgment for the abatement of a nuisance, but was an equity judgment restraining the defendants from continuing the acts complained of.

The complaint stated facts entitling plaintiffs to equitable relief and asked judgment for equitable relief, and the judgment entered by plaintiffs being a judgment for equitable relief, it cannot be claimed on appeal that the action is not an equitable action. The fact that the parties would be entitled to a trial by a jury of some of the issues involved in an action would not prevent the action from being an equitable action, but if one or more of the issues were so triable the sections of the Code hereafter cited provide a method by which either party can procure the trial of such issues by a jury.

The construction and operation of the elevated railroad were authorized by the legislature. Its route was fixed mider the authority of the legislature, and as such it was authorized, with the consent of the city of New York, to construct and operate its road. If, however, in such construction or operation it became necessary to use the property of an individual, it must acquire, either by purchase or proceedings under the general railroad act, the title to such property (Matter of Elevated R. R. Co., 70 N. Y. 327, 361), and any appropriation of private property without acquiring title to it, would be a trespass (Uline v. N. Y. Central & H. R. R. Co., 4 East. Rep. 34).

The action therefore being an equitable action to be tried as in equity, the question is presented whether the trial of such an action before a jury is such an error as would require a reversal of the judgment and the direc ■ tion of a new trial.

Trials of issues in civil actions are regulated by chapter X. of the Code of Civil Procedure, and section 965 of the Code provides that an issue either of law or of fact must be tried as prescribed in this chapter, unless it be disposed of as prescribed in chapter VI. of this act.” Section' 968 prescribes the actions that are triable by a jury, and section 969 the actions that are triable by the court. This last section provides that an issue of law in any action, and an issue of fact in an action not specified in the last section or wherein provision for a trial by a jury is not expressly made by law, must be tried by the court, unless a reference or a jury trial is directed;” and section 970 provides the manner in which a jury trial in such an action shall be directed. The party entitled to a jury trial may apply on notice to the court for an order directing all the questions arising upon such issues to be distinctly and plainly stated for trial, and upon the hearing of the application the court must cause the issues to the trial of which by a jury the party is entitled to be distinctly and plainly stated.

By section 971 it is provided that in an action where a-party is not entitled as of right to trial by jury, the court may in its discretion upon the application of either party, or without application, direct that one or more questions of fact arising upon the issues be tried by a jury, and may cause those questions to be distinctly and plainly stated for trial accordingly; and by section 972 it is provided that if the questions directed to be tried by the jury as prescribed in the last two sections, do not embrace all the issues of fact in the action, the remaining issues of fact must be tried by the court or by a referee..

By section 1022 it is provided that the decision of the court on the whole issue of fact must state separately the facts found and the conclusions of law, and it must direct the judgment to be entered thereupon; and by section 1225 it is provided that in an action triable by the court where one or more specific questions of fact arising upon the issues have been tried by a jury, judgment may be taken upon the application of either party as follows : First. “ If all the issues of fact in the action are determined by the findings of the jury, or the remaining issues of fact have been determined by the court or a referee, an application for judgment may be made upon the whole issue as upon a motionand second, “if one or more issues of fact remain to be tried, judgment may be rendered upon the whole issue at the term of the court where, or by direction of the referee, by whom they are tried.”

I have stated the provisions of the Code controlling the trials of civil actions in full, and these sections contain the only provisions that authorize a jury trial in actions not specified in. section 968 ; and except where the proceedings authorized by those sections have been taken the provisions of section 969 apply and the issues must be tried by the court.

The system for the trial of actions provided by the sections above mentioned, preserves the distinction between actions which were formerly called equitable, and of which the court of chancery had cognizance, and those called actions at law which were determined in a court of law, although both classes óf actions are now tried by the same court.

The methods of the trial of the two classes of actions are very different. The legislature has provided that the issues of fact in an equity case must be tried by the court, unless the court should send either one or more of the issues of fact to be tried by a jury, in which case an order must be made specifying the issues to be passed upon by the jury, and for that purpose the questions to be answered by them must be distinctly stated.

The case of Hammond v. Morgan (3 East. Rep. 868), was an action for the recovery of certain letters patent, &c., claimed to have been delivered by the plaintiff to defendant, and the return of which were demanded. The issues were brought on for trial by the plaintiff at a special term, and were, on motion of defendant, sent by the special term to a jury term for trial. No issues were framed, and a general verdict having been rendered on the trial before a jury in favor of plaintiff, the court entered on such verdict an equity judgment directing the return of the instruments, to recover which the action was brought. A motion was made to set aside such judgment as irregular, which was denied in the court below, but which was reversed by the court of appeals. In the opinion in that case, Earle, J., says : “In that event (viz., the action being treated as an equity action), the case was properly noticed at special term, and should there have been tried before the judge without a jury, unless at his instance, or upon motion of one of the parties, some or all of the issues were ordered to be tried before a jury, and for that purpose the questions to be answered by them should have been distinctly framed. In such a case, the issues are sent to the jury, for the aid and information of the court. If the facts thus submitted to and answered by the jury, together with the facts admitted by the pleadings, cover the whole case, so that no further facts need be proved for the information of the court, motion may at once be made for judgment,”

In the case at bar, there was no order of the special term sending issues to the jury for trial; no issues were Eramed to be tried by a jury. The plaintiff brought the base on for trial, where it was not triable, and where, despite the exception of the defendant, it was tried not as an equity case, but as an action at law..

Under the sections of the Code above cited, and the decision of the court of appeals in Hammond v. Morgan, we think the motion of the defendants’ counsel that the case be stricken from the calendar, and ordered to be tried at special term as an equity case, should have been granted.

Plaintiff insists, however, that the defendant, by: its proceedings prior to making the motion, had waived its right to demand a trial before the court without a jury. We have examined the facts upon which the plaintiff claimed the defendant waived such right, and do not think they can be said to have that effect. The action, as before stated, was for damages sustained up to the time of the commencement of the action, and for an injunction, and the plaintiff, by waiving his claim for equitable relief, could have tried his action before a jury for the damages therein claimed, and it appears that defendant made the motion for the trial to which it was entitled as soon as it was developed by the opening of the case, that the equitable relief would be insisted on. This, we think, was in time. The fact that one of the defendants, after plaintiff had noticed the case for trial at a jury term, also noticed the case for trial at the same term, was not a waiver of his right to object when the case was called on for trial (Wheelock v. Lee, 74 N. Y. 495).

The case of People v. Metropolitan Telephone Co. (31 Hun, 596), does not help the plaintiff. That was plainly an action to abate a nuisance, and was one of the actions specified in section 968 of the Code, which was triable before a jury. But in that case it was held that a judgment which included equitable relief in directing the removal of the obstructions in the streets, could not be sustained on the general verdict for plaintiff, and to authorize the court to interfere with the existence of the poles there should have been a finding in some form to show which of them, and to what extent they exceeded the necessary bounds prescribed by the statute.

We are also of the opinion that the verdict of the jury in the form in which it was rendered was not sufficient to sustain the judgment entered thereon.

The answer of the defendants railway companies put in issue the allegations that the structure described in the complaint diminished and impaired the light, air, and ventilation of the plaintiff’s premises and that the structure or operation of the road appropriated any of the plaintiff’s property, and before plaintiff was entitled to the relief demanded there must be some finding of fact that plaintiff’s easement in the street was occupied by-defendants.

On the trial there was evidence tending to show that that easement was not appropriated or used by defendants. That question was not submitted to the jury, nor was there any finding of fact on that issue. In the case of Hammond v. Morgan (supra), it was held “that if the finding of the jury together with the facts admitted in the pleadings, do not cover the whole case, and other issues remain to be tried, or other facts requisite for equitable relief remain to be proved, then the case must be regularly brought to a. hearing before the court, when the court may or may not adopt the finding of the jury and other facts may be proved, and in such case the court must make findings of fact and law to which exceptions may be taken by either party desiring to appeal.”

It appears in this case that after all the evidence was in, the trial judge in charging the jury said, “that as matter of law plaintiff sustained injury to some extent, if nominal only, that would require you should find for the plaintiff, and therefore your answer to the first question, ‘ Do you find for plaintiff V will be ‘Yes.’” That was simply a direction to the jury to find that plaintiff had been injured by the defendant, and there was no finding of the jury that the structure of the Elevated Railroad Company was an impairment of, or an appropriation of the plaintiff’s easement.

As we are of the opinion, however, that the action was improperly brought on for trial before a jury, the judgment must be reversed on that ground, and a new trial ordered, with costs to the appellants to abide the event of the action.

O’Gorman, J., concurred.


source: Caselaw Access Project

author: Freedman, J.

license: Public Domain

text:
    JOHN PETERSEN, Respondent, v. JOHN SWAN, Appellant.

      Law merchant.—Negligence.—Bight of seamen to medical and surgical ' treatment.

    Plaintiff was a seaman on board of a vessel of which defendant was a part owner, and was injured while in such service by a cross sea which boarded the vessel while in the Indian Ocean.

      Held (following the former decision in this case, 50 Super. Ot. 46), that under the law merchant, plaintiff had the right to claim from the ship suitable care and treatment, and that if he was negligently treated by the master, defendant cannot defeat recovery by showing that he was part owner only and that the other owners were not joined. That the captain, in such case, sailed the vessel on what is known as shares, so long as this does not involve an entirely independent command, constitutes no defense to the owner.
    Under the statutes of the United States, the vessel was bound to have on board a chest of medicines, but there is no law requiring the presence of a physician or surgeon. Suitable directions contained in the medicine chest for administering the remedies are sufficient. In the absence of a physician or surgeon, in case of such an accident, it is the duty of the captain to act according to his best judgment, and if he is not fully competent to follow the directions contained in the medicine chest, he is to extend such relief as under all the cireumstances is reasonable until regular medical advice can be procured with reasonable dispatch.
    A mere error of judgment on the part of the captain, although it may be a grave one, is not equivalent to negligence ; nor is negligence shown where it appears from the evidence that the inferences militating against the captain’s treatment are such that the unfavorable result of the treatment may be attributed to mere want of medical skill, which the master of a vessel is not presumed to possess.
    Upon a review of the evidence, held, insufficient, to show negligence in any aspect of the case.
    Before Sedgwick, Ch. J., Van Vorst and Freedman, JJ.

      Decided April 7, 1886.
    Appeal by defendant from judgment and order denying motion for a new trial.
    The facts appear in the opinion.

      James K. Hill, Wing & Shoudy, for appellant.

      Hart <£■ Price, for respondent.
   By the Court

Freedman, J.

The plaintiff was a seaman on board the bark Vilora H. Hopkins, and he brought this action against the defendant, as part owner of the vessel, for damages claimed to have been sustained by him in consequence of alleged negligent treatment by the master of the vessel, while suffering from injuries received in the service of the vessel.

About July 1, 1881, in the Indian Ocean, a cross sea boarded the vessel and seriously injured the plaintiff. Both of his shoulders were dislocated, his left wrist was broken, and his left hand badly bruised. The captain, although the vessel was in jeopardy, promptly attended to the plaintiff. He was successful in re-placing the right shoulder with comparatively little difficulty. But the wrist of the left arm being broken, force could not be applied to that arm. It was necessary first to set and bandage the broken wrist, and this the captain did. He extended the fingers of the hand, so as to bring the bones into position, and then bound up the hand and arm with splints. For the purpose of setting the left shoulder, he resorted to a very novel and ingenious expedient. He took one of the cabin doors off its hinges and nailed a board across the doorway a little higher than the plaintiffs’ arm-pit. Then by extending the arm over this bar and pulling upon it, the shoulder was sprung back into place.

From these injuries to his shoulders the plaintiff in due course of time entirely recovered, and no complaint was ever made, or is now made, concerning their treatment.

The grievance of the plaintiff relates solely to the treatment of the wrist and hand.

Upon this point we have heretofore held (50 Super. Ct. 46), that, under the law merchant, the plaintiff had the right to claim from the ship suitable care and treatment, and that, if he was negligently treated by the master, the defendant cannot defeat the action by showing that he was part owner only, and that the other owners were not made parties defendants in the action. The propositions thus decided are not open for re-examination. As to the further point that the captain sailed the vessel on what is known as shares, it was held in Scarff v. Metcalf (22 Week. Dig. 63), that, as this does not involve an entirely independent command, it constitutes no defense to the owner. The learned judge who presided at the trial was therefore right in refusing to dismiss the complaint.

An examination of the whole case shows, however, that upon the question of negligence the verdict rendered by the jury is against the weight of the evidence, even if the case was properly submitted.

The vessel, mider the statutes of the United States, was bound to have on board a chest of medicines, and this the evidence shows she had. But there is no law which required the presence of a physician or surgeon. Suitable directions contained in the medicine chest for administering the remedies were sufficient. In the absence of a physician or surgeon it was the duty of the captain to act according to his best judgment, and if he was not fully competent to follow the directions contained in the medicine chest, he was to extend such relief as under all the circumstances was reasonable until regular medical advice could be procured with reasonable dispatch.

At the time of the injury the vessel was, as already stated, in the Indian Ocean. The nearest port at that time, as claimed by the plaintiff, was on the island of Mauritius ; but as that was some 1500 miles from the. scene of the accident, and entirely out of the regular course of the vessel, the captain had the right to keep on his voyage to Batavia, as he did do. In going there, it is true, he passed Angers, but as that is simply a port for orders and without a hospital, and distant only about sixty miles from Batavia, and he had no orders to stop there, and there being not sufficient evidence that any good could have been done, even if he had stopped there and looked for a physician, he had a right to pass it.

The result is that, in every aspect of the case, the duty of the captain to furnish to the plaintiff regular medica assistance cannot be held to have commenced before the arrival of the vessel at Batavia.

Reserving for the present the occurrences on the voyage to Batavia for examination to be made hereafter, it is to be noted that the vessel arriyed at Batavia on a Saturday afternoon at a time too late to comply with quarantine and custom-house regulations. On the following Monday, which was the earliest time practicable, the necessary formalities were gone through with, and the véssel was allowed to enter. The captain then applied to the United States consul to put the plaintiff into hospital, and for that purpose made a full statement of the particulars of plaintiff’s case. The consul was willing to give a permit, if insisted on, but advised, as a preferable course, that the plaintiff should be taken to the doctor of the guardship, who was quite a competent man. That advice was acquiesced in by both the captain and the plaintiff. Owing to the prevalence of a sea breeze it was unsafe to proceed to the guardship on that same evening, but the plaintiff was taken on board the following morning. At that time the captain took him there in his own boat. The doctor examined plaintiff’s hand and wrist thoroughly, and, after having acquainted himself with all needful particulars, dressed it and gave instructions for the future. Plaintiff’s hand at that time was much inflamed, and, Contraction of the, cords having set in, the opinion of the doctor was that there was a probability that the hand would become crippled. After that the plaintiff was repeatedly taken before the said doctor. The vessel remained at Batavia about thirty-five or thirty-six days, and during that time he was taken to the said doctor at least five times according to his own testimony, and twenty-one times according to the testimony of the captain. But the number of visits is not very material, for the evidence fully establishes that all that could then and there be done for the plaintiff was done, that all the instructions of the doctor were faithfully carried out, and that upon the last visit the doctor said that the hand was healing rapidly, and that he was not able.to do any more than he had done.

The vessel then proceeded to Sourabaya, where she remained from two to three weeks, and during that time the plaintiff according to his own testimony did not ask to see any doctor.

The next port at which the vessel touched, was Peckalonga. She arrived there some two days after having left Sourabaya. Her stay at Peckalonga amounted to about sixty days. There was no hospital at that port, but a physician resided there. As the plaintiff requested to see a doctor, the captain took him to a hotel and sent for the resident physician. The latter came, examined the hand, and came to the conclusion which he announced, that he could do no more than had been done. The plaintiff returned to the vessel again, and soon thereafter the vessel, with the plaintiff on board, sailed for Boston, Mass., her port of final destination, where she arrived February 1, 1882. ■ At Boston the plaintiff was discharged with a permit to go to the Chelsea hospital, of which, however, he made no use.

For the period of time so far examined, viz.: from the arrival of the vessel at Batavia to the discharge of the plaintiff at Boston, the case is utterly bare of facts upon which a charge of negligence causing the injury complained of, can be sustained.

Outside of the matters so far considered, the only pretense of wrongful treatment by the captain during the period examined, is that the plaintiff was compelled to work at Peckalonga, although he was not able to do so. This was seventy-five or eighty days after the accident, when the fracture had been healed and a bony union re-established, though more or less inflammation may have remained in the hand from causes to be hereinafter referred to. The clear weight of the evidence is, that the plaintiff was simply requested to turn a winch with four or five other seamen, a work in which he could use one or both of his hands at pleasure, and that he complied with the request without objection and with the statement that he would try. So, in all other respects the evidence clearly shows that the plaintiff was not, at any time after the accident, required to do any substantial service involving the use of the hand and wrist in question.

The case of the plaintiff, therefore, wholly rests upon what took place on board of the vessel from the time óf the accident to the time of the arrival of the vessel at Batavia.

As to that the plaintiff complains of many things which, even if true, would establish only that he might have been made more comfortable than he was made. None of these things co-operated to produce the crippled condition of the hand for which he seeks compensation in damages. Moreover, the testimony of the captain, the mate, the steward, and the stewardess, clearly demonstrates that, in the main, the captain was quite attentive to the plaintiff, and that all was done for him which, in good faith, was deemed expedient under the' circumstances. Indeed, there is the testimony of a fifth witness in the case, to the effect, that the plaintiff subsequently declared that the captain had cared for him as if he had been his father.

The only thing which, therefore, remains to be considered, consists of the active treatment by the captain of plaintiff’s hand and wrist up to the time of the arrival of the vessel at Batavia. From all that bears upon this point, the conclusion is inevitable, that the captain was right to put on splints, but that he erred in putting them on too tight and keeping them on too long. Whether he took the splints from the medicine chest, or constructed them out of the boards of a maccaroni box, and whether they were as thick as claimed by the plaintiff, or as thin as claimed by the captain, are matters of no importance whatever. The idea uppermost in the captain’s mind seems to have been that his first duty was to bring about a bony reunion of the fractured parts of the wrist, and that in the meantime, the hand, though it was bruised, had to be left to take care of itself. He persisted in this idea even when he saw that mortification of the hand was setting in, for he then proceeded to cut out portions of the splints and to allay the inflammation by the application of poultices, but failed to ease the hand by a removal and change of the splints or the substitution of more elastic appliances. This certainly was an error, and without doubt the cause of the present stiffness in three fingers and the thumb of plaintiff’s hand which constitutes the injury for which damages are claimed. But a mere error of judgment, in such a case, although it may be a grave one, is not equivalent to negligence. To recover, the plaintiff must prove additional facts which make the error negligence. Moreover, negligence must be established by a preponderance of evidence. Upon all the evidence given on both sides, 'the inferences militating against the captain’s treatment are of such a character that the result of the treatment may well be attributed to mere want of medical skill which the master of a vessel is not presumed to possess.

The examination so far made sufficiently shows that, even if the case was in. all respects properly submitted to the jury, the weight of the evidence was in favor of the defendant upon the question of negligence, and that the jury should have rendered a verdict for the defendant.

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

Sedgwick, Oh. J., and Van Vorst, J., concurred.


author: O’Gorman, J.

text:
    MAX DANZIGER, Respondent, v. WILLIAM H. SIMONSON, Impleaded, &c., Appellant.

      Mortgage, foreclosure—Mechanics lienor, defendant, no standing in court, if notice of pendency of action to foreclose lien nop filed in statutory time—Builder's mortgage—as to mechanics' lien attaching only to amount due on.

    To an action brought to foreclose a mortgage, one who, subsequently to the mortgage had filed a notice of a mechanics’ lien on the premises, was made a party defendant. At this time ninety days had not elapsed since the filing of the notice. Before the ninety days expired the mechanics’ lienor answered setting up various matters as defenses. ’ After the ninety days had expired, an order referring the issues was made. The defendant claiming the mechanics’ lien did not, within the ninety days, file a notice of the pendency of an action to foreclose his lieu.—Reid, that he had no standing in court to litigate.
    The mortgage under foreclosure was a builder’s loan mortgage—the builder, before the filing of the notice of lien conveyed to a third person for the benefit of the mortgagee. The notice of lien was filed against the builder and the third person, claiming for materials furnished under a verbal contract with the builder. The action was brought by the mortgagee.

      Reid, that if the lien were valid and of full binding force it could only be for materials furnished under the verbal contract with the builder, and could only attach to the money due by the mortgagee to the builder.
    Before Sedgwick, Oh. J., Tritax and O’Gorman, JJ.

      Decided April 7, 1886.

      Appeal from a judgment in favor of plaintiff entered on the report of a referee.
    The action was brought by the plaintiff, as mortgagee, to foreclose a builder’s loan mortgage on certain lots of land in New York city, made by defendant Kelly, as owner in fee, and for money advanced from time to time by plaintiff on account of the mortgage in the progress of the building of houses on the lots. The bond and mortgage were executed in August, 1883. Kelly commenced to build on the lots, and continued to do so, until November T, 1883, when he ceased, and conveyed the lots to defendant Maschke, the conveyance being for the benefit of the plaintiff. On April 18, 1884, defendant Simonson filed a lien on the lots against Maschke, as owner, and Kelly, claiming that he had furnished materials on the ■ employment of Kelly, on a verbal contract with him. No notice of It's pendens was ever filed by Simonson. The action was commenced May 12, 1884. Simonson demurred January 14, 1884. The issues were, on August 1, 1884, referred to a referee, who reported in favor of plaintiff, writing as follows :
    “ Edward Patterson, referee :
    “This is an action to foreclose a mortgage. The defendants Simonson and the ‘ A. Hall Terra Cotta Company,’ were made parties, because they had filed liens against the mortgaged premises upon sub-contracts for supplies used in the construction of the buildings, which contracts they had made with Kelly, the principal contractor.
    “ It appears affirmatively that neither of these defend ants filed a notice of lis pendens within the ninety days required by the mechanics’ lien law, and by the failure to do so they lost whatever rights in the mortgaged premises they might otherwise have acquired (Bones v. N. Y. Christian Home, 64 How. 509). The filing of the lien and the subsequent filing within the statutory limitation of time of a notice of lis pendens were absolutely necessary to give the defendants above named a standing in court to litigate.
    “ The Act of 1882, as amended in 1883, does not in this respect differ from the act of 1875. Unless the liens are perfected, the court has no power to consider the claims of the defendants.
    “ These defendants seek to establish their liens in this action and possibly they might if notices of Us pendens had been filed, have set up their demands as counterclaims. I do not consider it necessary in this action to pass upon this, except to say that under the form of the respective answers of the defendants referred to, counterclaims are not pleaded as the Code requires. But even considering that counter-claims are properly pleaded, the defendants then virtually occupy the positions of plaintiffs seeking to enforce their respective liens against the property—that is to say, the affirmative is with them to establish their rights under the mechanics’ lien law.
    “I think, therefore, that the reasoning of Judge Rapallo, in Weyer v. Beach (79 N. Y. 409), covers this case. He says, speaking of the enforcement of a lien by proceedings under the act. ‘ The proceeding is statutory, and can only be resorted to in a case falling within the statute—that is, where a mechanic’s lien exists. The main object of the proceeding is to enforce the hen, and the power to render a personal judgment is merely incidental to the main purpose, and to avoid the necessity of resorting te a separate action. But where no lien exists, this form of proceeding cannot be resorted to for the purpose of enforcing a mere personal contract between parties, and the unfounded allegation of the existence of the lien does not authorize the substitution of this proceeding in place of the proper common law action.’
    “Section 1813 of the consolidation act, as amended in 1883, does not apply to a case of this kind, i. e., to an action for the forclosure of a mortgage. But if a mortgage is to be regarded as an ‘ other lien ’ within the meaning of the section, then the defendants should have filed notices of lis pendens, for that is expressly required to be done.
    “The fact that this is an action to foreclose a mortgage and that the defendants named are made parties, cannot affect the nature and character of their rights. If they have no claim upon or interest in the premises, they cannot under their pleadings enforce, on a failure of their liens common law demands against Danziger.
    “As to the other propositions urged by the counsel for the defendants, mentioned above, it is sufficient to say there are no issues raised by the pleadings giving them place in the litigation. The nature and validity of the conveyance to Maschke cannot be inquired into here for obvious reasons, and the alleged merger of the mortgage in a fee simple estate in the plaintiff, is also a matter outside of the legitimate scope of this action. The law furnishes a different and appropriate and effective remedy to said defendants if their rights have been invaded by fraudulent transfers of the property.
    “ The defendants are not judgment creditors.
    “ The plaintiff is entitled to judgment.”
    From the judgment entered upon the report of the referee, defendant Simonson appealed.

      H. D. Van Orden, attorney, and W. II. Arnoux, of counsel for appellant,
    on the questions considered in the opinion, argued :—I. The referee erred in holding that the appellant’s lien had expired ; and he erred in rejecting the testimony offered by appellant to sustain his answer. The filing of lis pendens by the plaintiff within ninety days from the time of filing lien by the appellant, inures to the benefit of all other defendants who have filed liens ; and, therefore, the filing of Us pendens by the appellant herein was unnecessary (McDermott v. McDonald, 50 Super. Ct. 153 ; Laws 1880, § 1813 ; Gildersleeve v. Landon, 13 N. Y. 609 ; Mack v. Phelan, 93 Ib. 20). The plaintiff’s action is a foreclosure of the defendant’s lien, and this Us pendens filed by plaintiff embraced in contemplation of law all liens of the defendants. Plaintiff can only file same (§ 1631 of Code).

    II. The Act of 1880, § 1813, also provides : “ But the neglect to file such notice shall not abate any action which may be pending to enforce the lien, such- action may be prosecuted to judgment against the persons liable for the debt.” The appellant claims that by this provision it was not necessary for him to file a Us pendens as to his lien, because the plaintiff was liable for the debt, and therefore, the action did not abate. This agreement by plaintiff with Kelly, and request by plaintiff that appellant furnish materials, makes the plaintiff liable for the debt, and so he becomes an original debtor. And if it were otherwise the plaintiff must be liable (Lawrence v. Fox, 20 N. Y. 268 ; Ramy v. Mullen, 5 Abb. N. C. 246). This agreement was excluded by the referee, and appellant excepted. The plaintiff being by law an original debtor the action does not abate under section 1813 of Laws of 1880.

      Max Gross, attorney, and Lewis Sanders, of counsel for respondent.
   By the Court.

O’Gorman, J.

This is an action in rem, and defendant Simonson, in his answer, claims as lienor, relief in his favor in rem, and that he be paid out of the proceeds of the sale of the lots under the foreclosure, the amount due on his lien.

His right to that relief, or to any relief in this action, depends on the existence of his lien as a statutory incumbrance on the land, and on his compliance with all the statutory requisites, to give to the lien full binding force and effect. Moreover, his lien, even if valid and of full binding force, could only protect him, as to materials furnished on the employment of Kelly and under the verbal contract with him, and pould only be effective, to the extent of any money due by the plaintiff, the mortgagee, to Kelly oil the contract between them and unpaid.

It is in evidence that no money was due by the plaintiff to Kelly under that contract: The referee, however, held, that by the failure of the defendant Simonson to file a notice of lis pendens within the ninety days required by the mechanics’ lien law, he lost whatever rights in the mortgaged premises he otherwise might have acquired, and that this omission was fatal to his claim to any relief in this action. There is ample authority to sustain that conclusion (Bower v. N. Y. Christian, &c. Home, 64 IIow. Pr. 509 ; Potter v. Rowland, 8 N. Y. 448; Weyer v. Beach, 19 Ib. 409).

The defendant, Simonson, has also excepted to findings of the referee, as to items of costs and disbursements allowed in his second report, and has appealed from the judgment.

In my opinion none of the exceptions to the findings of facts and conclusions of law of the referee, is well taken.

The judgment appealed from should be affirmed, with costs.

Sedgwick, Oh. J., and Truax, J., concurred.


author: Per Curiam.

text:
    MARSHALL CUTLER, et al., Appellants, v. THE AMERICAN EXCHANGE NATIONAL BANK, Respondent.

      Credit, letter of advice of— When credit may be withdrawn—Special credit created—Payments inferentially made on prior credits—Entire failure of consideration upon which money is furnished by one to another, effect of.

    A credit given by a letter advising the person to whom it is addressed that his account is credited with a certain sum received from parties therein named, for the use of a party therein designated, it appearing that the addressee had not furnished the funds for such credit, may be withdrawn before payment made by the addressee on the paper.
    The request of the party putting the writer of the letter in funds for such credit, that the money to be put to the credit of the addressee, does not make the addressee, and not the writer, the debtor, in the absence of proof tending to show that the addressee was bound to use the credit or to pay upon the paper.
    Payments made on the day of the writing of the letter by the writer on drafts of the addressee, it appearing that there was an open account between the two, and that their places of business were a long distance apart, are inferentially, in the absence of explanation, paid on earlier credits.
    The letter of credit manifesting on its face that the sum specified therein, was for the use of the party therein designated, created a special credit to be drawn against specifically; and the issuer of it has no right to use it, to discharge an indebtedness due from the addressee to him.
    The addressee (the Leadville Bank) having failed before the receipt by, or presentation to it, of the letter of advice, and having therefore refused to pay to the party for whose use the credit was established, on his demand, the parties (the plaintiffs) who procured the letter and furnished the funds for the credit, presented the letter to its issuer (the defendant), and demanded the return of the sum mentioned therein; it appeared that on the very day-of the issuance of the letter, the Leadville Bank drew generally on the defendant to an extent sufficient, if so applied, to exhaust this credit; it also appeared, that the account between the two banks, beginning at the date of the issuance of the letter and ending with the failure of the Leadville Bank, showed an indebtedness due from defendant to the Lead-ville Bank of a sum greater than the amount mentioned in the letter. ■

      Held, that the consideration upon which plaintiffs put defendant in funds to establish the credit had entirely failed, and that plaintiffs were entitled to recover back from defendant the funds so furnished.
    Before Sedgwick, Ch. J., and O’Gorman, J.

      Decided April 7, 1886.
    Appeal by plaintiffs from, judgment dismissing complaint, entered on direction of court at the trial term.
    The facts appear in the opinion.

      Dudley B. Horton, attorney, and of counsel for appellants.
    . L. B. Bunnell, attorney, and of counsel for respondent.
   Per Curiam.

The plaintiffs applied to an officer of the defendants for a draft upon some one in Colorado. This was refused as not according with their methods of business. The plaintiffs gave the defendants a check upon their account with defendants, and the defendants gave to the plaintiffs the following instrument:

L “New York, July 20, 1883. >
.§ “ Bank of Leadville,
5 “Leadville, Colorado.
'o 1 ‘Your account is credited this day five hundred u dollars, received from Cutler, Hall & Co., for the use 3 of I. Seymour Hall.
3 “ E. Burns,
“ “ Cashier.”

Nothing was said as to the way in which this paper was to be used for the purpose of obtaining the money from the Leadville Bank. The plaintiffs sent it by mail to the Mr. Hall named in it, and who. lived in Colorado. At the end of about ten days he presented it to the Lead-ville Bank and demanded payment of it. At that time the bank had failed in its business and refused to make the payment. Mr. Hall returned the paper to the plaintiffs. The plaintiffs, after informing the defendants of the failure of the Leadville Bank, which it knew from other sources, and of its refusing payment, presented to them the paper, and demanded the return of the $500 which the defendants refused to return. The paper was produced on the trial.

On these facts certain positions taken by defendants may be examined. One was that the money paid by plaintiffs passed beyond the reach and control of the defendants the moment the credit was given on its books, just as effectively as if it had been delivered into the manual possession of the Bank of Leadville. This does not correctly describe the fact. The money was retained by the defendants to protect themselves against the use of the credit by the Leadville Bank. They would have a right to retain the money so long as there was a possi-' bility of the Leadville Bank paying money to the holder of the paper and upon the strength of it. Excepting as to such a contingency, the defendants were under no obligation to the Leadville Bank. It was within the rights and powers of the defendants, so far as the Bank of Leadville was concerned, to withdraw the credit, before payment had been made upon the paper, although that might be a wrong to the holder of the paper.

Another position was, that as the plaintiffs had directed the defendants to place this $500 to the credit of the Leadville Bank, they made the bank the debtor and not the defendants. The Leadville Bank, however, it must be perceived, never entered into any obligation of any kind to any of the parties. There is no proof of any fact that tends to show that the Leadville Bank was bound to use the credit or to pay upon the paper. The bank was a debtor to no one.

There was an attempt on the part of the defendants to show that the Leadville Bank had drawn on this credit. There was a general account between the defendants and the bank given in evidence. It was assumed that from this it appeared that the Leadville Bank, after this particular credit to them had been placed upon the books of the defendants, had drawn upon it and exhausted it. A scrutiny of this account would give another result; for it involves charging against this credit, sums paid by the defendants on the day of the transaction in question. The inference, in the absence of explanation, is, that these-sums were paid upon earlier credits, so that the account is of a kind that would show that upon the transactions beginning with the time of this credit, and ending with the failure of the bank, the defendant was debtor to the Leadville Bank in an amount greater than $500. They had no right to reduce this indebtedness, by the application of the so-called credit of $500 (Dows v. Kidder, 84 N. Y. 121). This so-called credit was a mere entry in a book of account, which did not make or shape the rights of the parties to the transaction.

There is no proof that the Leadville Bank ever knew that the entry had been made and therefore ever drew upon the so-called credit of §500. If the defendants had informed the Leadville Bank that there was a general credit of $500, they did so contrary to their legal obligation, for the paper manifests that the $500 was paid to establish a credit “ for the use of I. Seymour Hall.” The Leadville Bank was restrained to drawing on the $500 for the same use. The intent was that if the Leadville Bank paid the paper, then' any drawing on that account should be accompanied by the paper. The defendants cannot use this special credit to discharge the indebtedness due them (Fakland Adm’r v. St. Nicholas Nat. B’k, 84 N. Y. 145).

The consideration to the plaintiffs or to I. Seymour Hall, has entirely failed. The Leadville Bank has ceased to do any business. The retention of the $500 is not necessary for the protection of the defendants, therefore, the defendants are bound to return, upon demand, the $500.

The judgment is reversed and a new trial ordered, with costs of appeal to abide the event.


author: Sedgwick, Ch. J.

text:
    THE PEOPLE ex rel. JOHN J. CLARKE and JOHN J. CLARKE v. MATTHEW BREEN.

      District court clerics, term of office.-—-Construction of statutes—modifying sections in a prior act, effect on subsequent act.

    One appointed to the office of clerk of a district court of the city of New York, on the death, resignation or removal of an incumbent thereof, prior to the expiration of his term of office, is appointed for a term of six years from the date of the appointment.
    A provision in an act cannot bo controlled or modified by modifying sections in a prior act on the same subject.
    Before Sedgwick, Ch. J., Truax and O’Gorman, JJ.

      Decided April 14, 1886.

      Submission of a controversy upon facts admitted, under sections 1279 and 1285 Code of Oivil Procedure.
    The relator and the defendant each claimed to be entitled to the office of clerk of the district court in the city of New York for the tenth judicial district.
    On November 28, 1885, the incumbent of the office in question resigned that office, and thereupon, the justice of the court appointed the defendant as clerk. The official term of the justice expired December 31, 1885, and on January 1, 1886, the newly elected justice appointed the relator as clerk. The relator claims that the right of the defendant to hold as clerk ended December 31, 1885. The ground of this claim is said to be, that from November 28, 1885, to December 31, 1885, was the remnant of a term of six years at the beginning of which a clerk had been appointed, he resigning on November 28, 1885. The claim of the defendant is, that the statute declares that a clerk appointed shall hold office for six years.

      James C. De La Mare, attorney and of counsel for plaintiff
    cited :—Laws 1851, ch. 147, p. 271 ; ch. 514 ; 1854, ch. 65 ; 1855, ch. 293 ; 1857, ch. 344 ; 1866, ch. 217; 1869, ch. 377; 1872, ch. 438 ; 1877, ch. 417 ; 1878, ch. 345 ; 1873, ch. 613 ; 1882, ch. 410; People ex rel. Healy v. Leisk, 67 N. Y. 521; People v. Woodruff, 32 Ib. 355 ; People v. Supervisors of New York, 11 Abb. 114; Mason v. McClave, 99 N. Y. 83 ; People ex rel. Jackson v. Potter, 47 Ib. 375.

      Richard S. Newcombe,. attorney, and E. R. Meade, of counsel for defendant,

      cited: Laws 1882, ch. 410, §§ 1409-1430 ; § 1304 of Revision of special and local laws affecting public interests in New York city, passed in the year 1881; Laws 1872, ch. 388 ; 1882, ch. 410 ; People ex rel. Healy v. Leisk, 6 Laly, 517; 67 N. Y. 521; People ex rel. Hogan v. Flynn, 62 Ib. 375-; People ex rel. Mason v. McClave, 99 Ib. 88.
   By the Court.

Sedgwick, Ch. J.

The relator claims that by law, there have been made as to the office in question, fixed terms of six years, the first of which had a definite beginning when the first clerk under the statutes, was or should have been appointed, and that no appointee can hold under the appointment longer than the last day of that term of six years in which he was appointed.

This claim is not valid, if by law each appointee is to hold for six years of time from the date of his appointment. As to this, section 1421 of the “New York City Consolidation Act of 1882,” (ch. 410) says. “There shall be a clerk and an assistant clerk in each of the district courts, who shall be appointed by the justices of said court respectively ; they shall hold office for the term of six years from the date of appointment.

In People ex rel. Mason, et al. v. McClave, 99 N. Y. 83, the 39th section of chapter 335 Laws of 1883, was examined. It was : “ The police department shall have for its head a board to consist of five persons to be known as police commissioners of the city of New York, who shall hold their office for six years, unless sooner removed, etc.” Judge Andrews said as to this, “If this section is alone regarded, the term of six years is given not only to a police commissioner appointed, as was the relator, to succeed one whose term had fully expired, but to every appointee whether appointed to fill a vacancy created by the expiration of a term, or one created by the death, resignation or removal of an incumbent, during his term of office. The section makes no discrimination between these different classes of appointees in respect to their terms of office and if any distinction exist and one class hold their offices for six years and the other for the unexpired term of their predecessor only, it must be found in other provisions of the act.” A modification of the meaning of the 39th section, was made by referring to the 25th section of the same act; for the court held, that the two sections were to be construed at one time. In the present case, there is no modification of section 1427 in the act in which it occurs. If there could be found such in former acts on the same subject, such acts are repealed by implication, if not directly. Modifying sections in one act can be considered, because the intention of the whole act, as one statute, is to be found. A modification found in a former statute is not an evidence of an intent of a later statute. But the latter shows that the former has been reconsidered and not continued.

There should be judgment for defendant, with costs.

O’GtOrman, J., concurred ; Truax, J., dissented.


text:
    MARY T. CONSTANT as Executrix, and S. VICTOR CONSTANT, et al., as Executors of SAMUEL S. CONSTANT, Deceased v. THE AMERICAN BAPTIST HOME MISSION SOCIETY, Impleaded, &c.

      Mortgagee for valuable consideration, who not—Purchaser in good faith, notice to attorney having prior Tcnoioledge.—Equitable estoppel.—Mortgage in fact prior in date but subsequent in record to another, complaint and foreclosure of, form of, and party to.

    1. Mortgagee for valuable consideration, who not. The attorney for defendant, who had been allowed by it to retain in his possession for re-investment, moneys paid to him on the payment and satisfaction of mortgages held by it, procured third parties to execute to it their bonds secured by their mortgages on certain real estate, and deliver the same to him; the amount of such bonds and mortgages, by arrangement between the third parties' and the attorney, was to be paid by the attorney applying the same to the payment of certain bonds theretofore made by them to the plaintiff secured by their mortgages on the same real estate, two of which mortgages were not recorded ; nothing was paid by defendant at the time of the transaction or at any time afterwards, nothing was paid to any third parties, and nothing was paid to the plaintiff, nor were the bonds and mortgages to the plaintiff over paid or satisfied.

      Meld, that as against the plaintiff, the relation between the defendant and its attorney was that of debtor and creditor ; and that the taking of the bonds and mortgages by defendant for the antecedent debt of its attorney did not constitute it a mortgage for a valuable consideration within the meaning of the statute.

      2. Purchaser in good faith. Notice to attorney having prior knowledge. The attorney for the defendant was the attorney for the plaintiff through whom the transaction between .the plaintiff and the third parties above mentioned, and resulting in the bonds and mortgages to the plaintiff above mentioned, was had, and who was intrusted with the recording of the mortgages; but at the time of the transaction resulting in the bonds and mortgages to defendant, a statement was prepared by one of the employes of the attorney, under his direction, for the purpose of ascertaining the precise amount to be credited to the third parties upon the basis that the amounts of such bonds and mortgages were to be treated as loans from defendant, which showed the amount due plaintiff* of which statement defendant’s attorney had personal knowledge before the delivery to defendant of the bonds and mortgages made to it.

      Held, that such notice to the attorney was notice to the defendant of the existence of the prior mortgages to plaintiffs, of the amount due them, and of its rights thereto.
    8. Equitable estoppel cannot arise out of matters, from the existence of which no loss ensues. Although the plaintiff, at the several times above referred, was a member of the finance committee, and chairman of the executive board of defendant, and conceding that he knew of the attorney’s intention to give defendant the mortgages which were turned over, and that it was his duty to prevent the attorney from acting as he did ; yet the attorney being at the time heavily embarrassed, and shortly after making an assignment,

      Held, that the plaintiff’s not preventing the attorney from acting as he did, and permitting the defendant to receive the mortgages, would not have equitably estopped him from enforcing against the defendant the mortgages held by him, for it lost nothing by receiving the mortgages; its loss was complete when it satisfied its previous mortgages without compelling its attorney to pay over the proceeds to it.

      4. Nor from a loss not arising from an act done, or induced to be done by act, assertion or silence of the one sought to be estopped. The defendant foreclosed the mortgages made to it, purchased at the sale, and made a contract to finish the buildings. All this was done when plaintiff was no longer an officer, nor even a member of the defendant, and while defendant was, as above held, chargeable in law with notice of plaintiffs’ right.

      He Id, that no estoppel arose in equity out of these matters, as against the plaintiff.
    5. Mortgage in fact prior in date but subsequent in record to another; complaint inforeclosure of, form of, and parties to action. The holder of the mortgage prior in record may be made a party defendant, and it may be alleged generally, that he has, or claims to have some lien or interest upon the|mortgaged premises, or some part thereof, which, if any, is subsequent to the lien of plaintiffs’ mortgage. No special allegations are necessary.

      At Special Term, before Freedman, J.

      Decided April 21, 1886.
    Trial of three foreclosure actions.
    The facts appear in the opinion. '

      Thornall, Squires & Constant, for plaintiffs.

      JE. S. Clinch, for defendant.
   Freedman, J.

The three bonds and mortgages upon which the actions are brought, were duly executed and acknowledged by Elizabeth Meehen and Hugh Meehen, her husband, to secure the payment of the sums named therein. These sums they received as loans from Mr. Samuel S. Constant, through Mr. Deane, who acted as Mr. Constant’s attorney and counsel in the transaction. The date of the first bond and mortgage is October 2, 1882, and the other two are dated February If, 1883. The papers were duly delivered to Mr. Deane who handed the bonds over to Mr. Constant and retained the mortgages for record. This in law constituted a complete delivery to Mr. Constant, and thereupon Mr. Constant’s right to enforce the same became fixed. If he is to be deprived of it, it must be done by reason of something which occurred afterwards. There is no evidence that he ever received payment.

It appears, however, that Deane caused only the first mortgage to be recorded, that the other two were never recorded, and that he had authority to determine whether or not they should be recorded. Although in the matters stated he acted as the attorney and counsel of Mr. Constant, he was at the same time extensively engaged in real estate speculations on his own account, from some of which Mr. Constant indirectly received some benefit. Mr. Deane loaned Mr. Constant’s money to the Meehens to be used in the erection of buildings, and the mortgages taken were temporary or so-called builders’ mortgages, which were intended to be paid off and to be replaced by others of larger amounts whenever the buildings were so far advanced that a permanent loan could be obtained on them. This accounts for Mr. Deane’s failure to record two of the mortgages referred to. But whatever the reason, was, no person could take advantage of it as against Mr. Constant except a subsequent purchaser or mortgagee in good faith and for a valuable consideration whose conveyance or mortgage was first duly recorded.

On or about September 13,1883, the Meehens executed a bond and mortgage to the American Baptist Home Mission Society upon the property covered by Mr. Constant’s recorded mortgage. On January 11, 1884, they executed mortgages to the same society upon the property covered by Mr. Constant’s unrecorded mortgages. The execution of these three mortgages, with the bonds belonging thereto, was procured by Mr. Deane, who sent the bonds to the society at once, -and the mortgages as soon as they were recorded. The main question, therefore, is whether, as against Mr. Constant, the said society is a subsequent mortgagee in good faith and for a valuable consideration whose mortgage was first duly recorded.

As to Mr. Constant’s recorded mortgage, this question must be at once decided in the negative. Some independent considerations of an alleged equitable character which are claimed to affect the enforcement of this mortgage just as much as they are claimed to affect the enforcement of the unrecorded mortgages, I shall hereafter consider. As to Mr. Constant’s unrecorded mortgages, it becomes important to notice the relation which Mr. Deane occupied toward the society. He was a member of the executive board from May, 1878, to May, 1885, a member of the finance committee from June, 1878, to May, 1884, and the counsel of the society from September 13, 1880, to June, 1884. As such counsel it was his duty to examine titles on investments made by the society. In the regular course of events, therefore, Mr. Deane would have examined the title of the Meehens, and, if found all right- he would have procured the money from the society. He would then have used so much of it as was necessary to pay Mr. Constant and satisfy his mortgages, and paid the residue over to the Meehens. But all which was done was that under date of January 11, 1884. A statement was prepared for Mr. Deane by Mr. Squires, who attended to that kind of business for him, which showed the amount due to Mr. Constant on his unrecorded mortgages, that the Meehens gave a receipt for the amount as per statement,” i. e.,—for so much money not received by them, but to be used to satisfy Mr. Constant’s. mortgages, that satisfaction pieces were prepared, and that thereupon the Meehen bonds and mortgages were sent by Mr. Deane to the society, the bonds at once, and the mortgages when recorded. Nothing was paid to the Meehens, nothing was paid to Mr. Constant, and nothing was paid by the society at the time or at any time afterwards. The satisfaction pieces were not executed ; Mr. Constant was not even informed of the matter. For months afterwards he kept inquiring of Mr. Deane whether the latter had not yet found anything for the mortgages. „

The explanation for all this is, that for a long time prior thereto the society had intrusted Mr. Deane with the investment of its funds, and its committees had not exercised that supervision over his acts which should have been exercised, so that Mr. Deane could and did invest the funds of the society pretty much as he pleased. When a mortgage, which the society held, was paid to Mr. Deane, and this happened quite frequently, he applied to the society for a satisfaction piece, and the paper was executed by some of the officers of the society and handed to him, together with the bond and mortgage, for delivery to the party entitled thereto, but the amount received by him remained in his hands until he saw fit to reinvest it and return a bond and mortgage for it. It was for funds thus chargeable to him for reimbursement, and which had been in his hands for some time, that he undertook to turn into the society the bonds and mortgages referred to. He was at the time heavily embarrassed in his real estate speculations, and without doubt sent to the society the said bonds and mortgages in order to stave off investigation. A few months thereafter he failed and made an assignment for the benefit of his creditors.

Under these circumstances it is difficult to see how the society can claim the benefit of the recording act. As against Mr. Constant, the relation between Mr. Deane and the society was that of debtor and creditor. The taking of the bonds and mortgages for the antecedent debt of Deane, did not constitute it a mortgagee for a valuable consideration within the meaning of the statute (Rev. Stat. [6 ed.] Vol. II., p. 1138, §1), for it parted with nothing on the faith of the mortgages (DeLancey v. Stearns, 66 N. Y. 157 ; The Bank for Savings v. Frank, 45 Super. Ct. 404). Nor was there any representation made that the mortgages were first mortgages.

But the society is not even a mortgagee in good faith, for, under the circumstances of this case, the society as principal must be deemed to have had the same knowledge concerning the rights of Mr. Constant which Mr. Deane possessed as its attorney. Whatever benefit the society might claim under other circumstances under the rule as laid down by me in Dillon v. Sixth Ave. R. R. Co. (48 Super. Ct. 283; affirmed 97 N. Y. 627), cannot be accorded to it by reason of the fact that, contemporaneously with the execution of the bonds and mortgages by the Meehens to the society, and for the purpose of ascertaining the precise amount to be paid or credited to the Meehens upon the basis, that the amounts of said bonds and mortgages were to be treated as loans from the society, Mr. Deane procured Mr. Squires to make out the statement which showed the amount due to Mr. Constant. Now, it may well be that Mr. Deane personally did not see this statement until the day after the loan to the Meehens was closed between them and Mr. Squires on paper. But this is immaterial, because Squires acted for Deane, and the whole transaction remained a transaction on paper, the Meehens receiving nothing, Constant receiving nothing, and the society parting with nothing, and because Deane, beyond doubt, had personal knowledge of the whole transaction and of the contents of the statement, before the bonds and mortgages were transmitted to, and received by the society. The information thus obtained by Mr. Deane was, therefore, information acquired by him in the very course of the business of the society and as its attorney. The result is, that upon this point, the case falls within the rule as stated in Bank of the United States v. Davis (2 Hill, 451); Ingalls v. Morgan (10 N. Y. 178) ; Dillon v. Anderson (43 Ib. 231); The Distilled Spirits (11 Wall. 356) ; The Bank for Savings v. Frank (45 Super. Ct. 404); Kendall v. Mebur (45 Ib. 542 ; affirmed 46 Ib. 544, and 87 N. Y. 1). Moreover, at that very time Mr. Deane was not only the attorney of the society, but also a member of its executive board and of its finance committee.

There remain to be noticed the considerations of an equitable character to which I referred in the beginning, and on account of which it is claimed Mr. Constant and his executors are estopped from enforcing their mortgages against the society. They rest on the fact that Mr. Constant, at the times hereinbefore referred to, was a member of the finance committee of the society, and chairman of its executive board, and upon this it is claimed that it was his duty to prevent Mr. Deane from acting as he did. The answer to all this is that Mr. Constant’s rights had accrued before any wrong was perpetrated upon the society, and that, even if he had known of the intention of Mr. Deane to give to the society the mortgages which were turned over, and had acted, as the society claims he should have acted, the society would not have received the mortgages at all, and Mr. Deane would have remained indebted to the society precisely as he then was. The position of the society would not have been improved in the least by such action, and consequently it was not harmed by Mr. Constant’s omission to act. Its loss was complete when it released previous mortgages without compelling Mr. Deane to pay over the proceeds collected by him. The only risk Constant did run, was as to his unrecorded mortgages, and that was the penalty imposed by the recording act in favor of subsequent purchasers or mortgagees in good faith and for a valuable consideration, whose conveyances or mortgages might have been first duly recorded.

An equity is also claimed to arise from the fact that the society foreclosed its mortgages, purchased at the foreclosure sale, and made a contract to finish the buildings. There is nothing in this claim. These things were done when Mr. Constant was no longer an officer, nor even a member, of the society, and while the society stood, for the reasons hereinbefore stated, chargeable in law with notice of Mr. Constant’s rights, even if the contracts were not made after the filing of the notices of the pendency of the present actions. As to the form of the complaints, I see no reason to change the views expressed by me on the trial. There is no statute, rule or practice requiring that the complaint for the foreclosure of a mortgage shall contain special allegations as to defendants who are, or claim to be, subsequent lienors, and there is no difference in method between the foreclosure of an unrecorded, and that of a recorded, mortgage, except that under rule 63 an unrecorded mortgage must be filed with the clerk before the execution of the sheriff's or referee’s deed on a sale under the judgment of foreclosure. As both the plaintiffs and the society claim under mortgages executed by the Meehens, and the mortgages of the plaintiffs are first in date, the controversy does not present a question of paramount title, but only the question whether plaintiffs’ mortgages are really what they purport to be, viz. : first hens.

The plaintiffs are entitled to the usual judgment of foreclosure and sale, with costs, and an allowance in each of the three actions. Except as to matters peculiar to the actions when separately considered, the findings to be handed up for signature should be as they were proposed by the plaintiffs and corrected by me in Action No. 1, with the addition of a further finding, which seems to have been overlooked, showing breach of the condition of the mortgage, viz. : non-payment and the amount due.


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    NOAH WHEATON v. RICHARD S. NEWCOMBE.

      Attorneys beneficially interested in action.—Liability for costs.

    Under § 3247 of the Code, an attorney cannot be charged with costs as a person beneficially interested in the action, where such interest is solely under, and by virtue of, an agreement with the plaintiff, for the receipt of a portion of the recovery as compensation for services to be rendered. Said section applies to a case where the judgment was recovered subsequent to its enactment, though the action was commenced theretofore. The saving clauses in L. 1880, ch. 245, § 3, and .§ 3352 Code, do not take such a case out of the statute.
    Costs relate merely to the remedy, and their recovery and taxation are regulated solely by the provisions of the statute in force at the time of the recovery of a judgment.
    Before Freedman and Ingraham, JJ.

      Decided May 3, 1886.
    Appeals by defendant from two orders denying motions made to compel the attorneys for.the plaintiff, as persons beneficially interested in the action, to pay a judgment for costs.
    The facts appear in the opinion.

      Abram Kling, for defendant and appellant.
    6r. W. Cotterill, for respondent, Ira Leo Bamberger.

      Reginald Hart, in pro. per.

   By the Court.

Freedman, J.

The appeals present the question whether Hart & Bamberger, the attorneys of record for the plaintiff, are liable to the defendant who recovered judgment, for the costs of the action on the ground that they were beneficially interested in the action by virtue of an agreement by which they were to have a portion of the recovery as compensation for their services. That under section 44, chapter X., title I., part III. of the Revised Statutes they would have been so liable, if both shared in the agreement, was expressly decided in Voorhis v. McCartney (51 N. Y. 387). In Sussdorff v. Schmidt (55 N. Y. 325), it is true, a statement to the contrary may be found, but such statement is a mere dictum which was made without reference to the statute. In case it were necessary to decide which of the two cases should be followed, the preference would have to be given to Voorhis v. McCartney, on the ground that it is an express adjudication on the very point under the statute.

Section 321 of the Code provided a further remedy against the assignee of a cause of action after action brought. Section 44 of the Revised Statutes, and section 321 of the Code, were both repealed by chapter 245 of the laws of 1880, and in place thereof a new provision was substituted by section 3247 of chapter 178 of the laws of 1880, entitled “An Act Supplemental to the Code of Civil Procedure.” But this new section (§ 3247) expressly exempts attorneys from liability for costs, as follows: “ But this section does not apply to a case, where the person so beneficially interested is the attorney or counsel for the plaintiff, if his only beneficial interest consists of a right to a portion of the sum or property recovered, as compensation for his services in the action.”

In the case at bar the action was brought in 1878, and the judgment for costs for which Hart & Bamberger are sought to be held liable, was recovered in August, 1882. At the time of such recovery, section 3247 of the Code of Civil Procedure was already in force, and the question therefore is, whether that section, or the prior law, is to control. There is no claim that Hart & Bamberger held any assignment. The most that is claimed is that Hart & Bamberger were, or that at least Bamberger was, bene ficially interested in the action by virtue of an agreement with the plaintiff for the receipt of a portion of the recovery as compensation for services to be rendered.

The solution of the question of liability depends upon the effect to be given to several saving clauses. They have been carefully examined in the light of the points and the arguments submitted on both sides, and the conclusion reached is somewhat at variance with the view entertained by me in one of the early stages of this litigation, when I did not have the benefit of any argument.

Section 3347 of the Code of Civil Procedure saves a great number of proceedings in actions commenced before September 1, 1880, but does not affect the question of liability now under investigation. Section 3 of chapter 245 of the Laws of 1880, saves, from the operation of the repealing clauses of that statute, any right “ lawfully accrued or established before this act takes effectSection 3352 of the Code of Civil Procedure contains a similar saving clause in favor of rights lawfully accrued or established, &c.

Under the two saving clauses last referred to, and no others have been cited as bearing upon the question under examination, it is not enough that the action was commenced before the enactment of section 3247. To succeed in his application the defendant must show that his right to the costs of the action lawfully accrued or was established before the section went into effect.

As costs relate merely to the remedy, and as their recovery and taxation are regulated solely by the provisions of the statute in force at the time of the recovery of a judgment, the defendant never had a lawfully accrued or established right to the costs of the action within the true intent and meaning of said saving clauses until he recovered judgment against the plaintiff in August, 1882.

The conclusion is therefore unavoidable that, inasmuch as in August, 1882, there was no statute in existence under which an attorney could be compelled to pay costs on the ground that he had a beneficial interest in the action by virtue of an agreement for the receipt of a portion of the recovery as compensation for his services, the orders appealed from were properly made. This being so, the subordinate questions involved in the appeals need not be considered.

The orders appealed from must be affirmed, with costs.

Ingraham, J., concurred.


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    REBECCA SCHNOOK v. THE INDEPENDENT ORDER SONS OF BENJAMIN.

      Benevolent associations—contracts with.

    The by-law of defendant, a benevolent association, upon which action was brought, was as follows: “In case of the deatn of a brother of this order, his widow or heirs shall receive the amount agreed upon by the constitution, which shall, however, not exceed $1,000.” Held, that in the absence of qualifying circumstances, the beneficiary intended in the contract shown by such by-law, &c., is the lawful wife of the member in question ; that it is. legally possible for such member to designate as the beneficiary a person living with him as his wife, though not legally married to him, and if such designation is assented to, and becomes part of the contract, the person so designated may, on the member’s death, recover on the contract, though the burden of proof is on her to clearly establish said designation, and that it became part of the contract.
    Courts will not assist in encouraging concubinage, and no right of a lawful wife or child will be permitted to be taken away except upon clear proof.
    Story v. Williamsburgh M. M. B. Assoc. (95 HI T. 476), distinguished and limited.
    In this case upon a review of the evidence,—held, that plaintiff who, though not legally married to the deceased, had lived with him as his wife, did not sufficiently establish that she had been accepted by defendant as the beneficiary of the contract made with the deceased member, and that such acceptance had become part of the contract to the exclusion of the lawful wife who was living at the time of the member’s decease ; and therefore, that a direction of a verdict in favor of plaintiff was erroneous.

      Before Sedgwick, Oh. J., Freedman and Ingraham, JJ.

      Decided May 8, 1886.
    Exceptions ordered to be heard in the first instance at general term.
    The facts appear in the opinion.

      8. Kohn, for plaintiff.

      Alfred 8tecTcler, for defendant.
   By the Court.

Freedman, J.

The learned judge who presided at the trial, directed a verdict in favor of the plaintiff, and ordered defendant’s exceptions to be heard in the first instance at general term.

The action is brought by the plaintiff as the widow of one Bernhard Schnook, and it is founded upon a contract made between Bernhard Schnook and the defendant, a domestic corporation, duly incorporated under the laws of the state of New York, for benevolent purposes, whereby the defendant, in consideration of certain moneys to be paid by Bernhard Schnook, &c., promised and agreed with him, among other things, to pay to the widow, if any, surviving said Bernhard Schnook, the sum of $1,000 in sixty days after the decease of said Schnook.

This contract stands admitted by the answer which raised but one issue ; namely, that the plaintiff is not the widow of Bernhard Schnook, but that one Sarah Schnook, living in London, is such widow, and as such is solely entitled to the money sued for.

In the absence of qualifying circumstances, the beneficiary intended by this contract was the lawful wife of Bernhard Schnook, in case she survived him. Nevertheless, it was legally possible for Bernhard Schnook to designate the plaintiff as such beneficiary, although he might not have been legally married to her, and if such designation wTas assented to by the defendant, and became part of the contract, the plaintiff, under the decision of Story v. Williamsburgh M. M. B. Association (95 N. Y. 474), can recover. But, in order to accomplish this, the plaintiff, upon whom the burden of proof rests, must clearly establish, not only that such designation was-made, but also that it became part of the contract.

In the Story case, the association, at the request of the member, issued and delivered a certificate in which the plaintiff, Mary Story, was designated as his wife and beneficiary, and the certificate was executed by the officers of the society, under its corporate seal. It also appeared that the plaintiff for sixteen years had lived with Story, believing herself to be his lawful wife ; that she had had children by him which were dependent upon them for support; that she had known of the insurance, and that, with one or two exceptions, she had paid the assessments out of money she had earned by sewing.

The case at bar is quite a different case. At the trial it appeared that in April, 1882, Bernhard Schnook, representing himself to be a single man, was initiated as a member of Nathan Lodge No. 48, a branch organization of the defendant; that in the fall of 1882 a marriage ceremony took place between him and the plaintiff ; that thereafter they lived together as man and wife; that Bernhard Schnook notified Nathan Lodge No. 48 that he had married, and that his wife’s name was Rebecca ; and that the secretary of said lodge, in conformity with the requirements of the by-laws of the order, reported the facts so communicated to the United States Grand Lodge of the order. It further appeared that, after the said notification by Bernhard Schnook, the latter continued to pay the dues which he was required to pay quarterly, and that at the time of his death, which occurred in December, 1883, he was a member in good standing. The by-law which represents the contract in this case "was shown to read as follows, viz.: “In case of the death of a brother of this order, his widow or heirs shall receive the amount agreed upon by the constitution, which shall, however, not exceed $1,000.”. These were substantially all the facts upon which the plaintiff relied for a recovery.

In view of the evidence produced by the defendant, upon which the jury would have been authorized to find, that there was a prior marriage between Bernhard Schnook and Sarah Rice, which took place in London in 1869, that the issue of such marriage was a child named Clara, and that said Sarah and Clara were both living at the time of the death of Bernhard Schnook, the facts shown by the plaintiff were not sufficient to establish that the plaintiff had been accepted by the defendant as the beneficiary of the contract made with Bernhard Schnook, and that such acceptance had become part of the contract to the exclusion of the lawful wife. Courts will not assist in encouraging concubinage, and no right of a lawful wife or child will be permitted to be taken away except upon clear proof. The doctrine of the case of Story v. Williamsburg M. M. B. Association (supra) should not be extended beyond the substantial facts of that case.

The exceptions of the defendant should be sustained, the verdict set aside, and a new trial ordered, with costs to the defendant to abide the event.

Sedgwick, Ch. J., and Ingraham, J., concurred.