text:
    Frank M. Todd, as Executor, etc., of Ezra Lewis, Deceased, Appellant and Respondent, v. Squire V. Vaughan, Respondent and Appellant.

      Trust in personal property — action for money had and received — declan’ations of a decedent — after testimony by one party as to pcvrt of a conversation, the whole conversation may be stated by the other party to it.

    Where a testator in liis lifetime delivers to a third person a sum of money, and directs Mm to expend it in a specific manner, a valid trust is created, which need not bo in writing.
    Where the executor of the testator subsequently demands the money of the trusted or depositary, and the latter admits that there is a balance of the money in Ms hands after making- the payments directed by the testator, and that he is willing to pay it over, claiming no commissions as trustee, the executor may recover such balance from the trustee in an action for money had and received, and an equitable action for an accounting is unnecessary.
    Where a testator creates a trust in personal property, and directs his trustee to pay a portion of the fund to a third person, to be expended by such third person for his father’s funeral expenses, including a tombstone, such third person has no such interest in the money as will prevent his testifying to conversations taking place between the testator and the trustee.
    Where an executor testifies in his own behalf that he called upon the trustee of an alleged trust, and demanded that the trustee account to him for moneys received by the trustee from the testator, and that the trustee then admitted the delivery of the moneys to him by the testator, the trustee is entitled to prove the whole of the conversation, in order to show what the real transaction with the deceased was, and that it was not what it appeared to bo from that portion of if which the executor had related.
    Appeal by the defendant, Scpiire V. Vaughan, from so much of a judgment of the Supreme Court, entered upon the report of a referee in the office of the clerk of the county of Allegany on the 20th day of July, 1894, as orders and adjudges that the plaintiff recover of the defendant the sum of $70.45 for his second cause of action, together with costs.
    Also an appeal by the plaintiff, Frank M. Todd, as executor, etc., of Ezra Lewis, deceased, from that part of said judgment which orders and adjudges that ho do not recover of said defendant the further sum of $354, with interest, demanded in the plaintiff’s second cause of action.

      F. 8. Armstrong, for the plaintiff.

      J. 8. Leggett, for the defendant.
   Lewis, J.:

The judgment in this action was entered upon the report of a referee. There were two counts in the plaintiff’s complaint. Judgment was demanded in the first count for $400. The referee found for the plaintiff upon the first count, and neither party has appealed from that part of the judgment.

Plaintiff in the second count of his complaint asked to recover of the defendant the sum of $417.47, for money had and received by the defendant to the use of the testator.-

. The referee found that the plaintiff was entitled to recover under the second count the sum of $63.47, with interest, and that he was not entitled to recover the balance of said sum of $417.47, and both parties appealed from the decision of the referee under the second count.

The evidence tended to show that during his last sickness and two or three days before his death, the testator delivered to the defendant $417.47, and requested him to use the same for the following purposes: First, to pay the funeral expenses of the deceased, and to deliver to Ezra Lewis, a nephew of the deceased, the sum of $200; to deliver to William Lewis $100, with which William was to pay the funeral expenses of his father, Aaron Lewis, deceased, who was a brother of the testator, and also erect a tombstone at the grave of said Aaron Lewis, deceased.

The defendant received the money and promised to appropriate the same as directed by the testator. After the testator’s death the defendant jiaicl as directed $200 to Ezra Lewis, $100 to William Lewis, and paid the funeral expenses of the deceased, which amounted to the sum of $54, which left $63.47 of said money in his hands unexpended.

After the money had been so disbursed by the defendant, the plaintiff, as the executor of the will of the testator, demanded of the defendant the $417.47. •

It is the contention of the plaintiff’s counsel that, notwithstanding the circumstances under which the defendant received the $417.47, his authority to disburse the money as directed was revoked by the death of the testator.

The referee, we think, correctly held that the defendant became a trustee of the fund, and in paying it out acted in discharge of a trust which he had assumed at the request of the deceased, and that he was under no legal obligation to account to the plaintiff for that portion of the fund which he had disbursed.

It is the contention of the defendant that he is not liable to the plaintiff, in this form of action, for the unexpended portion of the money which he concedes to be in his hands. ITe insists that if the plaintiff is to recover the sixty-three dollars and forty-seven cents it should be in an action in equity for an accounting; that in that form of action he would be permitted to recover his commissions and expenses as trustee. It was fairly established by the evidence that when the plaintiff demanded the money of the defendant the defendant conceded that there was a balance in his hands of sixty-tliree dollars and forty-seven cents, which he was willing to pay to the plaintiff, and that he did not at the time claim to be entitled to any allowance for commissions as trustee.

Upon these facts we see no reason why the defendant was not liable to the plaintiff in an action for money had and received.

We have examined the exceptions of the respective parties to the rulings of the referee.

William Lewis was called as a witness by the defendant. He testified that he was present at the conversation between the deceased and the defendant concerning the $417.47. When asked to relate it, the plaintiff objected, claiming that the witness was incompetent under section 829 of the Code of Civil Procedure to testify to the conversation upon the ground that he was personally interested in the event of the action.

It appeared, as stated, that the sum of $100 was to be delivered to him to be used to pay his father’s funeral expenses, and to pay for a tombstone at his father’s grave. The entire sum was to be expended by him for the purposes named. He had no right to retain any portion of it to his own use. lie was not, so far as appeared, under any legal obligation to pay his father’s funeral ■expenses or to erect the tombstone at his own expense. Whether he was a competent witness to testify as to so much of the conversation between the deceased and the defendant as related to the $400 claim, is not before us for our decision; for, as stated, both parties acquiesced in the referee’s decision concerning that sum. The witness does not seem to have had any personal interest in the second cause of action, and there was no reason for excluding his testimony as to that part of the conversation which related to the $417.47.

The plaintiff was called as a witness, and to establish his second cause of action testified that he called upon the defendant and demanded that he account for the money. That the defendant admitted to him that the testator delivered to him the $417.47.

The defendant was permitted, on the cross-examination of the plaintiff, to call out the balance of the conversation, and show that the defendant, in the same conversation, related the circumstances of the delivery of the money to him by the testator, and what he was directed to do with the money. The plaintiff had related so much of the conversation as tended to charge the defendant with the receipt of the money and establish his liability to account therefor to the plaintiff as the representative of the estate. The effect of the balance of the conversation was to destroy or modify the use which plaintiff sought to make of the admission. Upon the plainest principles of justice and' equity the defendant was entitled to the balance of the conversation, with a view of showing what the real transaction was, for the purpose of showing that it was not what it appeared to be from the portion of the conversation which the plaintiff had related. (Bearss v. Copley, 10 N. Y. 93; Nay v. Curley, 113 id. 575.)

-The defendant was, we think, a trustee of the $417.47. This sum was delivered to him by the deceased for the purposes mentioned. The defendant deposited it, as the evidence shows, in a bank to his own credit; during the lifetime of the testator the deceased parted with its possession.

The circumstances amounted to a declaration of trust. (Martin v. Funk, 75 N. Y. 134; Young v. Young, 80 id. 422.; Von Hesse v. MacKaye, 136 id. 114.)

No writing was necessary to create the trust. (Matter of Carpenter, 131 N. Y. 86.)

We fail to find any reason for disturbing the findings or conclusions of the referee.

The judgment should be affirmed, but without costs of this appeal to either party.

Bradley and Ward, JJ., concurred; Dwight, P. J., not voting.

Judgment affirmed, without costs to either party.


source: Caselaw Access Project

author: Lewis, J.:

license: Public Domain

text:
    Buffalo Cement Company (Limited), Plaintiff, v. Pliny B. McNaughton, Impleaded with William A. Green and Others, Defendants.

      Municipal corporation — bond requiring a contractor to pay laborers and material-men— when they cannot sue upon it — promise for the benefit of a third person.

    A city may, lor the purpose of protecting its property and in the transaction of business of a private character, avail itself of all the rights and remedies afforded to an individual, and where its charter provides that the city may enact such ordinances as it deems expedient for the protection of its property, it may, through its common council, require any person entering into a contract with it, which involves the use of labor and materials, to give, in addition to the usual bond, a further bond, conditioned that the contractor shall pay for all labor and materials used in the performance of the contract. The effect of sucli a bond is to protect the city against any annoyance or expense which might result from the filing- of notices of lien upon the fund in its hands by laborers or by materialmen.
    Where, however, such a bond contains a further condition that if the contractor shall fail to pay all laborers and all materialmen, they, and each of them, may sue upon the instrument in their own names to recover the indebtedness to them in the same manner as if they, and each of them, had been parties named in the bond, there can be no recovery upon the bond by a materialman in the absence of proof that he knew of the resolutions of the common council in regard to the bond and its provisions, and that ho furnished the material to the contractor relying upon the bond.
    Where there is a failure of such proof, there is nothing before the court but a promise made to the city by the contractor and bis sureties, in an instrument to which the materialman was not a party and where there was no privity between him and the city' — unattended by anything- to show that the city would suffer any damage by the failure of the contractor to pay him.
    An action cannot be maintained-by a third person, in the absence of any liability in his favor due or to grow due from the promisee.
    Motion by the plaintiff the Buffalo Cement Company, Limited, for a new trial on a case containing exceptions, ordered, to be beard at the General Term in the first instance upon a nonsuit granted after a trial at the Erie Circuit on the 24th day of September, 1894..

      George G. Miller, for the plaintiff.

      William B. Hoyt and Frank II Gallan, for the defendants.
   Lewis, J.:

The defendant "William. A. Green, by a written contract with the city of Buffalo, dated June 18, 1892, agreed to construct a sewer in Bailey avenue, in said city, for which the city agreed to pay him $125,707 in semi-monthly payments as the work progressed.

Concurrently with the execution of this contract a bond was executed by the contractor, Green, as principal, and the defendants McNaugliton, Ackley and one Bayner, as sureties, to the city of Buffalo. It was in the usual form under seal, and was in the penal sum of $02,804. It was recited therein that,

“ Whereas, the above-bounden W. A. Green, by an instrument in writing, under his hand and seal, bearing even date with these presents, ---contract with the city of Buffalo to furnish all the material and labor, excavate for, build, construct, and in all respects complete on or before the first day of January, 1893, in the-manner, on the conditions, and for the consideration in the annexed and preceding contract mentioned and contained, constructing a. four-foot brick sewer. * * *
“ Now .therefore, the conditions of the above obligations are such that if the above-bounden W. A. Green shall well and truly, and in good and sufficient and workmanlike manner perform the work mentioned in the aforesaid agreement, in accordance with the terms and conditions therein stipulated, and in each and every respect comply with the conditions therein contained, and shall well and truly pay, or cause to be paid in full, the wages stipulated and agreed to be paid to each and every person employed by him to perform any labor or services, * * * in the doing of the work above mentioned, as specified in the agreement or contract between. W. A. Green and the city of .Buffalo, * * * and shall pay, when the same shall become due, the price of all materials provided or used in the performance of said work, pursuant to the provisions of a, resolution of the common council of the city of Buffalo, adopted the 31st day of March, 1869, and shall in all things faithfully perform ou his part the terms and conditions of said contract or agreement, then this obligation shall cease, otherwise to be and remain in full force and virtue. * * * And in case the said W. A. Green shall fail to pay to each and every of the persons employed to perform labor or services aforesaid, or to whom anything shall be due for material provided or used in the performance of said work, as hereinabove provided, then each and every of said persons to whom the aforesaid W. A. Green shall be then indebted, may bring an action on this instrument in his or her name, for the recovery of the amount of such indebtedness, in the same manner as if such person was a party named in this instrument.”

The following is the resolution of the common council referred to in said bond :

“Resol/oed, That the common council hereafter will require any person entering into any contract with the city of Buffalo, which requires the employment of labor and use of material, to give, in addition to the usual bond for the faithful performance of the contract, a bond with sufficient sureties, conditioned that said contractor shall pay for all labor and material used in the performance of- said contract, and that all advertisements for proposals shall state that such bond will be required.”

- In 1892 the common council of the city adopted another resolution, which became section 11 of chapter 3 of the ordinances of the city, and is as follows :

“All bonds given for the complete performance of any contract with the city shall contain a clause that the person performing said contract'will pay every person who shall furnish supplies or material for use in and for the completion of said contract, and every person who shall render services in and about the performance of said contract, and also a further clause authorizing each and every such person to bring an action upon such bond, in the same manner and with the same effect as if he were specifically named in the bond.”

This latter resolution was in force at the time of the execution of the contract and bond.

After the giving of the bond, and between the 30th day of July, 1892, and October 31,1893, the plaintiff furnished to the contractor, Green, a large quantity of cement, which was used by him in the construction of the sewer.

This action was brought against the defendant Green, as principal, and the sureties upon the bond, to recover a balance of $1,983.45, due from Green to the plaintiff on account of the cement furnished, as aforesaid. The sewer had been completed, and the city had paid Green in full therefor, prior to the commencement of this action.

The defendants McNaughton and Ackley interposed answers, and at the close of the plaintiff’s evidence, upon motion of the said defendants’ counsel, the plaintiff was nonsuited. The exceptions were directed to be heard in the first instance at the General Term.

Upon what ground the nonsuit was placed does not appear from the case.

We assume in deciding this case that the city had the power to adopt the resolutions mentioned, and to require for its own protection, as a condition of awarding the contract to Green, that he should furnish a bond like the one in question, with the exception, perhaps, of the provision as to the right of the materialmen to maintain actions thereunder. The city had the power to require such a bond to protect itself against any annoyance or expense which might result from the filing of notices of liens upon the fund by laborers employed upon the work, or by persons who might furnish materials to be used in constructing the sewer.

The charter provides that the city may enact such ordinances as it deems expedient for the protection of its property, the exercise of its corporate powers and the performance of its corporate duties. (Laws of 1891, chap. 105, § 17, subd. 11.)

A city may, 'for the purpose of protecting its property, and in general in transacting business of a private character, avail itself of all the rights and remedies afforded to an individual, (City of Buffalo v. Bettinger, 76 N. Y. 393.)

There cannot be any reasonable doubt that this bond, so far as it directly or indirectly tended to the benefit or protection of the city, was binding upon the sureties.

The serious question is, was it for the indemnity of the city alone, and taken solely for its protection and benefit ? If so, the plaintiff is not entitled to avail itself of its provisions. The conditions of tlie bond are very broad. The sureties, in terms, covenant that •Green shall pay for all materials which he shall purchase and use ■about the work, and that in case lie fails so to do, the materialmen may bring an action on the bond in their own names to recover for their materials.

Had it been made to appeal’ upon the trial that the plaintiff, when it furnished the cement to Green, knew of the resolutions of the ■common council mentioned, and of the bond and its provisions, and that it furnished the materials to Green relying upon the bond, a ■different question might be presented. The plaintiff might then urge, with much force, that the bond constituted á kind of open letter of credit, upon the strength of which it had furnished the •cement to Green.

Had these facts appeared, it might well be urged that the sureties ■should be estopped from raising the question as to their liability to the plaintiff. (Union Bank v. Coster, 3 N. Y. 203; Sawyer v. Hopgood, 13 N. Y. St. Repr. 711.)

But no such question arises here, for the reason that such a claim was not made in the plaintiff’s complaint, nor was there evidence tending to establish such facts, and the claim was not urged before us upon the argument.

If the city had been under any legal obligation to the plaintiff because of its having furnished the cement to Green to be used in constructing the sewer, then the plaintiff could invoke in its behalf the doctrine of Lawrence v. Fox (20 N. Y. 268). But, as we have ■seen, no such claim could be made by the plaintiff. The plaintiff is ■obliged to rely upon a simple promise made to the city by the ■defendants in an instrument to 'which the plaintiff was not a party, there being no privity between the plaintiff and the'promisee in the bond, and there being an absence of anything showing that the city could suffer any damage by the failure of Green to pay the plaintiff for the cement.

We held in Coleman v. Hiler (85 Hun, 547) that to enforce such a promise the promisee must have been under some obligation to the person for whose benefit the promise was made.

It was held in Townsend v. Rackham (143 N. Y. 516) that such an action could not be maintained “ by the third person in the absence of any liability in his favor, due or to grow due from the one to whom the promise was made.” And such is the doctrine of Gifford v. Corrigan (117 N. Y. 257); Vrooman v. Turner (69 id. 280), and French v. Vix (143 id. 90).

In some of the States of the Union statutes have been passed giving á cause of action in favor of materialmen in such a case as this. A like provision may be found in' certain city charters. But these statutes will be found to contain provisions looking to the protection of the sureties in some instances by a short Statute of Limitations.

The plaintiff is not aided by any .such provision, either in our city charter or by any statute in our State. If the plaintiff is entitled to recover in this case, the bond being a sealed instrument, it would seem to follow that the twenty years’ Statute of Limitations applies. If so, it would follow that the plaintiff, or any others who may have furnished material or labor upon the sewer, could at any time during that period maintain actions against the sureties to recover anything due them from the contractor. Such actions might have been- brought before the completion of the sewer, and the penalty named in the bond exhausted, and the city thereby deprived of the protection which the bond was intended to give to it. AVe are of the opinion that the plaintiff failed to make a case entitling it to recover, and that a nonsuit was properly directed.

The motion for a new trial should be denied and judgment directed for the defendants upon the nonsuit.

Bradley and AVard, JJ., concurred; Dwight, P. J., not voting.

Motion for new trial denied and judgment directed for the defendants on the nonsuit.


text:
    John Wooster, Plaintiff, v. Joshua A. S. Bliss, Defendant.

      Personal injuries to a coachman — driving horses without blind&rs, when contributory negligence on the part of the coachman.

    In an action brought to recover damages resulting from injuries received by the plaintiff which were caused, as alleged, by the negligence of the defendant, it appeared that the plaintiff was a coachman in the employ of the defendant; that his master had bought a pair of young horses which had been, for four or live weeks, under the care of the plaintiff who was an experienced horseman, thirty-five years of age; that the employer told the plaintiff that he wished to go out driving, and that he wanted the blinders taken off the horses; that the plaintiff said that it -was unsafe to drive the horses without blinders, but the defendant said that that made no difference as he was going to drive them himself, and he directed the plaintiff to bring the horses from the barn to the house at a certain hour; that while the plaintiff was attempting to do this the horses were frightened by the shining of the sun on the silver lamps of the carriage, and before reaching the house ran avray, destroying the carriage and seriously injuring the plaintiff.
    Upon the trial of the action the plaintiff was nonsuited.

      Held, that, as the coachman entertained the opinion that it was unsafe to drive the horses without blinders, he should, under the circumstances, have declined to drive them; that, if he chose, he might have led them to the house;
    That it could not be said that the employer had carelessly exposed the servant to a danger greater than that which the servant, in the exercise of due care, had reason to anticipate, nor that the employer had, by his superior knowledge or information, m'eans" of knowing or appreciating the probable danger, which were not possessed by the employee, and that the nonsuit was properly granted.
    Motion by tlie plaintiff, John "Wooster, for a new trial on a case containing exceptions, ordered to be heard at the General Term in the first instance upon a nonsuit granted by the court after a trial at the Erie Circuit on the 2d day of October, 1894.

      Emory P. Glose, for the plaintiff.

      3. J. Swift, for the defendant.
   Lewis, J.:

This action was brought to recover damages for injuries sustained by the plaintiff caused by the alleged negligence of the defendant. The plaintiff was thirty-five years of age when he received the injuries of which he complains. lie had from his childhood been about horses and was familiar with their habits; he had worked as a coachman from twelve to fourteen years.

He had worked for the defendant in that capacity for thirteen months prior to the accident. The defendant purchased a team of western horses in the spring of 1892 at East Buffalo.

The plaintiff brought them from there to the defendant’s barn in the city of Buffalo, and had charge of them, caring for and driving them as a coachman for four to five weeks before he was injured. They were young horses, high-spirited and somewhat fractious.

They had not been out of their stable for four or five days previous to the occurrence in question on account of the weather being inclement. They were kept in a barn at defendant’s home in Buffalo. The plaintiff was called as a witness in his own behalf and gave the following account of wliat occurred at the time of the accident: “ They (the horses) was in first-class condition I thought by the way they acted in the barn. * * * Mr. Bliss came to the barn about one o’clock, and he said, ‘John, I want the team about half-past two on the two-seated surrey, and I want you to-take off the blinders.’ I said, ‘ Mr. Bliss, I don’t think it is safe to. take those horses out without blinders on.’ Tie said, ‘ Never you mind. I want you to take off those blinders, I am going to drive; this team myself. • All I ask of you is to bring the horses to the house when I ring to you.’ I said, ‘ All right. It doesn’t make any difference who is going to drive them; it is not safe.’ Tie said, ‘ 1 will risk it. You bring out those-horses when I ring for-you to bring them out at half-past two.’

I hitched the horses up and got into the surrey. My nephew-pulled the door open and I drove the horses out. When they got. beyond the shadow of the barn and the sun struck the carriage they jumped and got on a full run and I done all I could to hold them.

“ They run out in front and run into a big elm tree. It was a. two-seated surrey, with lamps on the side; silver mounted lamps-with glass in, right by the forward seat. Could see the sun glinting-on the silver when the horses started. As soon as we got in the sun it kind of glittered and the horses jumped. * * * Soon as they drove out there was a little curve to make, and they throwed their heads back and saw the can-iage and they started. They run as fast as I ever rode in a carriage.

One horse ran on one side of the tree and the other on the other side, and smashed the carriage up together.

“ The horses got loose, and I found myself on the other side of the street. Threw me out of the carriage and broke my jaws on both sides.”

The account thus given was uncontradicted, and at the close of the evidence the plaintiff was nonsuited. The question is whether upon these facts there was any question which should have been submitted to the jury. Hpon the undisputed evidence the plaintiff had a much better opportunity to know the habits and disposition of the horses than had the defendant. He had been with them daily for four or five weeks, handled and driven them. lie was quite as competent, and probably more so,, than the defendant was to judge as to the safety of driving them without blinders. He only consented to hitch them to the surrey upon the assurance of the defendant that he, and not the plaintiff, was to drive them. Plaintiff testified that he would not have driven them without blinders. We do not see upon these facts what question there was which should have been submitted to the jury.

We have examined the many authorities referred to in the brief of the plaintiff’s counsel. Many of them were cases where servants were permitted to recover in actions against their masters for injuries sustained while performing work, which was apparently dangerous, by the direction of the master upon his assurance that it was safe so to do. It is a well-settled rule of law that employers are required to furnish their employees with reasonably safe appliances with which to perform the work he requires them to do; and if the employer carelessly exposes the servant to danger greater than the servant, in the exercise of due care, had reason to anticipate, or if the employer has, by his superior knowledge or information, means of knowing or appreciating the probable danger not possessed by the employee, the employer maybe made liable for injuries sustained by the servant. It cannot be claimed with any propriety that this case comes within these rules of law. Whether it was probably safe to drive these horses without blinders was a matter of judgment based upon facts which, as we have seen, were better known to the plaintiff than they were to the defendant.

The plaintiff’s experience with these horses and their habits, and his knowledge of horses generally, enabled him to form a more correct judgment in the matter than the defendant.

According to his own testimony he was not in much doubt about the danger. He felt quite certain that it was unsafe and dangerous to drive the horses without blinders. Entertaining that opinion he should have declined, under the circumstances, to drive them. He could, had he chosen so to do, have led them to the house instead of driving them.

It cannot, with propriety, be claimed that he was under any coercion, for lie testified tliat lie would not have driven the horses without blinders. ~We are not aware of any reported case upon such facts as are here presented, where a party has been permitted to recover damages.

Statements may be found in some of the cases which seem to sustain the plaintiff’s contention, but when examined they will be found to be easily distinguishable from this case.

The nonsuit, in our opinion, was properly granted.

The motion for a new trial should be denied, and judgment directed for the defendant on the nonsuit.

Bradley, "Ward and Davy, JJ., concurred.

Motion for new trial denied, and judgment directed for the defendant on the nonsuit.


author: Lewis, J. :

text:
    Pascal P. Pratt, Appellant, v. The New York Central and Hudson River Railroad Company and Others, Respondents.

      Injunction to restrain the police power of the State in abolishing grade crossings, at the suit of cm abutting owner — discretion of the tried court — measure of damages.

    The granting or refusing of an injunction pendente lite rests in the sound discretion of the court of original jurisdiction, and its order will not usually be reversed unless there has been an abuse of that discretion.
    Where the primary purpose of an improvement in the manner of constructing railroad crossings in city streets is not for the benefit of a railroad company or its patrons, but is an exercise of 3ie police power of the State for the protection of the lives and limbs of its inhabitants, the court will not enjoin the carrying out of the project, but will leave an abutting owner, who claims that he will be damaged thereby, to his remedy by action, in which he may be awarded damages to the same extent and for the same elements as the compensation given in a special proceeding for the condemnation of land under the right of eminent domain.
    Where a railroad is conducted through a street by means of ah open excavation the measure of damages is the difference between the actual market value of the land of the abutting owner and what the land would have been worth if the railroad had not taken the easement, and when there is neither a decrease in value nor any prevention of an increase, the plaintiff is entitled only to nominal damages.
    Upon an application-for a temporary injunction to restrain the defendant, a steam railroad company, from excavating a cut in a city street, it appeared that the city owned the fee of the street, but had taken no proceedings to condemn the interest of the plaintiff, as an abutting owner, or to determine what injury would result to him from the proposed excavation; that the excavation was a part of a general plan to change grade crossings in the city of Buffalo, involving an expenditure of §4,000,000 or $5,000,000, part of which was to be paid by the city and part by the railroads running into the city; that the proposed cut in the street would still leave an open space in front of the plaintiff’s premises at least forty-four feet wide, and that the main opposition to the excavation consisted in the fact that the approach to plaintiff’s premises by certain streets would be circuitous instead of direct.

      Held, that the removal of the danger caused by the railroad tracks at grade, and the substitution of an entirely safé though circuitous route or approach, should be considered, and that the plaintiff was not entitled to an injunction restraining the carrying out of the improvement.
    Appeal by tlie plaintiff, Pascal P. Pratt, from, an order of the Supreme Court, made at tlie Erie Special Term and entered in the office of the clerk of the county of Erie on the 2d day of May, 1895, vacating a preliminary injunction heretofore granted in the action.

      John II. Milburn, for the appellant.

      Frank G. Laxoyhlin, for the respondents.
   Lewis, J. :

A plan was inaugurated several years ago for the purpose of remedying what had come to be a serious evil in the city of Buffalo, caused by the steam railroads crossing the streets of the city at grade.

After the expenditure of much tim# and labor, a general plan for a change of the grade crossings was adopted.

It involved a very large expenditure of money, amounting to $4,000,000 or $5,000,000, part of which is to be paid by the railroads and the balance by the city. The New York Central and Hudson River Railroad Company has for many years had and maintained two tracks running along the surface of a street in Buffalo, known as the Terrace. A very large number of its passenger trains pass over these tracks daily.

Plaintiff owns a valuable parcel of land abutting upon the southerly side of the Terrace, upon which are valuable business buildings. His lot is several hundred feet westerly from Main street, which crosses the Terrace. Pearl street enters’ the Terrace nearly opposite the plaintiff’s premises. The Terrace has been one of the public streets of the city for many years, and is about 200 feet wide. The adopted plan contemplates depressing the tracks of the Central road through the Terrace, and to accomplish this a cut is to be made along the center of the street, which will be twenty-eight feet wide, and, in front of the plaintiff’s premises, twelve feet deep, and a stone wall is to be built upon either side of the cut, extending two feet above the surface of the street. The space between the cut and the plaintiff’s premises will vary from forty-four to seventy-five feet in width. Main street is to pass over the cut, and a bridge for pedestrians is to be built over it at the foot of Pearl street. Teams entering the Terrace from Pearl street will be compelled to go several hundred feet out of their way to reach plaintiff’s premises by the way of Main street.

The city owns the fee of the street, but no proceedings have been taken to condemn the plaintiff’s interest as an abutting owner in the Terrace, or to determine the injury, if any, which would be occasioned to him by the proposed excavation.

Proceedings had progressed so far that contracts had been entered into with the defendants McNangliton and Huntington, and they were about to commence excavating for the cut in the Terrace, and this action was brought by the plaintiff to restrain the defendants from proceeding with the work. A temporary injunction was obtained, and upon a motion being made to continue the injunction pending the trial, an order was made vacating the injunction, and from this order the plaintiff appealed.

It is evident that the plaintiff’s property will derive, in common with other property in the city, some advantages from the contemplated change in the grade crossings. Those seeking to reach his premises will be relieved from the danger incident to crossing the railroad tracks now upon the surface of the street.

The real foundation of his complaint is that access to certain other streets will be by a circuitous instead of a direct approach.

The primary purpose of this great improvement is not for «the benefit of the railroad company or its patrons, or the traveling public, but is an exercise of the police power of the State for the protection of the lives and limbs of its inhabitants. The moving party in this undertaking is not the railroad company7, but the people of the State. The purpose is not to subserve the railroad use or convenience. In this respect the circumstances of the case are unlike the numerous cases that have arisen and been determined in this State in respect to the liability of railroad companies to damages and injunctions by reason of the construction of railroad embankments or elevated railroads in streets.

From the nature and extent of this improvement, and in respect to its alleged injurious effects upon abutting property, there is a substantial difference in the facts and circumstances of this case and those that existed in the cases of Reining v. N. Y., Lack. & W. Ry. Co. (128 N. Y. 157), and Egerer v. N. Y. Central & H. R. R. R. Co. (130 id. 108).

In the former case the portion of the street in front of the plaintiff’s premises was practically and substantially closed for ordinary street uses by reason of the railroad embankment. So, in the latter case, “ the structures complained of (embankments) practically destroyed the only access to plaintiff’s premises with a team and wagon.” The proposed cut will be an exclusive appropriation and occupation of twenty-eight feet in width of the surface of the street, and the abutting owners will be excluded from the part of the street so occupied, but there will remain open and unobstructed a sufficient portion of the street for traffic; there will be left substantially sufficient surface of the street for unobstructed ordinary travel, and it may be a question whether this will amount to a taking of plaintiff’s easement of access to his premises, or will merely constitute consequential damage which the abutting owner must bear without compensation, as in case of surface roads. In other words, whether the consequential damages flowing from such a lawful corporate user of the street have been transformed by the decisions of the courts from consequential injuries into invasions of property rights within the constitutional prohibition. (American Bank Note Co. v. Elevated R. R. Co., 129 N. Y. 271; Sperb v. Elevated R. R. Co., 137 id. 155-159.)

But, if it be assumed that the city cannot, for the purpose of altering the grade of the railroad crossings, appropriate a part of the street to the exclusive use of a railroad company so as to prevent abutting owners from the use of any part of the street in the accustomed way, without making compensation for the injury sustained, it does not follow that the plaintiff is entitled to an injunction pendente lite, nor that he will eventually show himself entitled to a final injunction, or even to substantial damages. The improvement may result in the invasion of a technical right and cause a technical wrong, and yet substantial damages may not be awarded, and the plaintiff may not be entitled to injunctive relief. .

Unless the plaintiff can establish that the market value.of his premises will be decreased by the improvement, or that it will prevent.his property from increasing in value, he may not be entitled to anything more than nominal damages. In determining that question, the benefits and advantages resulting from the construction may be weighed and considered.

The removal of the danger caused by the railroad tracks at grade, and the substitution of an entirely safe though circuitous route or approach may be considered.

The doctrine on this subject is well stated in Bohm v. Elevated R. R. Co. (129 N. Y. 576-587), from the headnote'of which we quote as follows: An abutting owner * * * has certain rights and privileges in a city street termed easements which are appurtenant to his land, and are a species of property.”

The beneficial enjoyment of these easements may be interfered with by the erection of an elevated railroad or a railroad embankment, etc., in the street. This interference is a taking pro tanto, and entitles the owner to compensation, and in addition to compensation for the damage done his adjoining land.

As, however, these easements are of no value, in and of themselves separate from the land, the real and only damage, if any, suffered by the owner in any particular case is a consequential one, i. e., the effect produced upon his abutting land. The question is simply as-to the actual result upon the land remaining. Has its actual market, value been decreased by the taking, or has it prevented an enhancement in value greater than has actually occurred, and if so, to what, extent.

The damage the defendants, the City of Buffalo and the New York Central and Hudson River Railroad Company, may be required to' pay is the difference between the actual market value of plaintiff’s land and what it would have been worth if the railroad had not taken the other property, i. e., the easements.

When, therefore, it appears that there has been neither a decrease. in value nor any prevention of an increase caused by the railroad, the plaintiff is entitled only to nominal damages. The benefits from the construction of such railroad may be taken into account and weighed, and an injunction will not be issued without proof of substantial damage, notwithstanding that a technical or legal injury may have been caused to the abutting owner’s easement in the street. (Newman v. Metropolitan Elevated Ry. Co., 118 N. Y. 618; Becker v. Same, 131 id. 509 ; Purdy v. Manhattan Ry. Co., 36 N. Y. St. Repr. 44.)

In Gray v. Manhatt. Ry. Co. (128 N. Y. 509) the court, in speaking of a final injunction, observed that unless the court below found the damage to be substantial, it would, in the exercise of its discretion, have withheld the injunction, and left the ¡ffaintiff to his remedy at law. It further observed that an equity court is not bound to issue an injunction where it will produce great public or private mischief, merely for the purpose of protecting a technical or unsubstantial right.

The granting or refusing of an injunction pendente lite rests in the sound discretion of the court of original jurisdiction, and its order will not ordinarily be reversed unless there has been an abuse of that discretion. (City of Gloversville v. Johnstown, etc., R. R. Co., 49 N. Y. St. Repr. 315; Hessler v. Schafer, 82 Hun, 199; Grill v. Wiswall, Id. 281.)

Again, the plaintiff may, by claiming it in his complaint, be awarded damages to the same extent and for the same elements as the compensation given in a special proceeding for the condemnation of land under the right of eminent domain.

If the damages awarded are not paid an injunction may be granted restraining the work until the damages are paid. (Hughes v. Elevated R. Co., 130 N. Y. 15; Pappenheim v. Met. Elev. R. Co., 128 id. 444.)

Upon the payment of damages thus ascertained, the plaintiff may be required to give a deed or convey the right to the defendant, and an injunction will be refused if the defendant be willing to pay the damages upon receipt of a conveyance.

This being the well-settled rule of law, there does not seem to be, upon the facts presented, any propriety in arresting, by injunction, the progress of this great work of remedying the grade-crossing evil.

We have examined the authorities referred to in the appellant’s brief, and do not find them in conflict with our views in this case.

The order appealed from should be affirmed, with ten dollars costs and disbursements of the appeal.

Bradley and Ward, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.


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    Richard E. Townsend, Respondent, v. Edward G. Felthousen, Appellant.

      fraudulent representations — competency of an affidavit two yea/t's old as to the assets of a firm — independent fraudulent acts.

    In an action brought to recover damages resulting from alleged false representations as to the value of stock in a manufacturing company, which the plaintiff had purchased, the' plaintiff claiming that the assets of the corporation and the value of its yearly business had been fraudulently misrepresented to him, it appeared that .the business had been formerly carried on by a firm composed of one Volker and the defendant Felthousen; that about two years before plaintiff bought the stock these persons organized the corporation in question, at which time a statement was made of the assets and affairs of the firm, and also that an affidavit, made by a Mr. Walker as to its business and assets, was exhibited to certain persons in order to induce them to purchase stock in the corporation.
    Upon the trial of the action in some manner the affidavit of Walker got into the case without objection, and the plaintiff testified that the defendant exhibited this affidavit to him, and that it influenced him in buying the stock. The plaintiff then offered evidence to show that the affidavit of Walker was not true, which was objected to, but the evidence was received upon the theory that it was competent to show an independent fraudulent act of the defendant, similar in character to the one in question, as bearing upon the question of the defendant’s intention in the transaction in question.

      Held, that although the affidavit made two years before the sale of the stock to the plaintiff might not have been competent evidence for the purpose for which it was admitted, yet if, as he testified, it was exhibited to him by the defendant and influenced his mind and induced him to believe that the assets of the corporation were much larger than they really were, it was admissible.
    Appeal by the defendant, Edward Gr. Felthousen, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 20th day of March, 1894, upon the verdict of a jury rendered after a trial at the Erie Circuit, and also from an order entered in said clerk’s office on the 17th day of July, 1894, denying the defendant’s motion for a new trial made upon the minutes.

      Adelbert Moot, for the appellant.

      Norris Morey, for the respondent.
   Lewis, J. :

The plaintiff, in the month of January, 1891, purchased of the defendant 625 shares of the capital stock of a manufacturing corporation, known as the Buffalo Steam Pump Company. The stock was of the par value of $100 a share. The plaintiff paid the defendant for the 625 shares the sum of $37,500, being at the rate of sixty dollars a share.

This action was brought to recover damages which the plaintiff claimed he had sustained by reason of his having been induced to purchase the stock by certain fraudulent representations, which, he claimed, were made to him by the defendant, and which induced him to make the purchase.

■ Various allegations as to false representations were stated in the complaint, among others, that the defendant represented that the assets of the corporation were much larger in amount and value than they in fact were, and that its liabilities were less than they were. And further, that the profits of the business of the company-since its organization, being for two years prior to the sale, were represented to have amounted to upwards of $13,000, to wit, $5,598.97 for the year 1889, and $7,644.51 for the year 1890, when in truth and fact there had been no profit realized in its business, but, on the contrary, there had been a loss in its business during said two years of upwards of $12,000. All of the allegations of fraud in the complaint were put in issue by the answer.

The case was tried before a struck jury with great deliberation. The trial occupied eleven days, and the jury rendered a verdict against the defendant for the sum $11,220.

The plaintiff gave evidence tending to show that during the negotiations which resulted iu the purchase by him of the stock, the -defendant exhibited to him a written statement of the assets and liabilities of the company, and that the statement was false; that it exaggerated the assets of the company and failed to state all of its liabilities.

The defendant, while conceding- that some unimportant inaccuracies may have been incorporated in the statement, claimed that they were entirely unintentional on his part, and were so insignificant in amount as not to materially affect the value of the stock. As to the important and material items of the statement claimed by the plaintiff to be untruthful, the defendant introduced evidence consisting of his own testimony and that of quite a number of other-witnesses, tending to show that they were not inaccurate, but were truthful statements and represented the actual condition of the company at the time of the sale in question. The defendant contended that substantially all the entries in the statement claimed by the plaintiff to be erroneous were not in fact -so, but were made to appear to be so by the adoption by the plaintiff of an erroneous,, misleading system of bookkeeping.

After having examined the evidence, which covers nearly 600’ pages of printed matter, we are not prepared to say that the verdict was not supported by the evidence.

It was a case especially adapted to trial by jury. Many questions-arose at the trial, upon the admission and rejection of evidence, and upon the charge of the court to the jury.

Some of them are especially urged by the appellant’s counsel as of sufficient importance to justify and require a new trial of the action. They do not so impress us, although some of them are not free from serious doubt.

The business of manufacturing pumps was formerly carried on in the city of Buffalo by a firm composed of Yolker and the defendant Felthousen. About two years prior to the sale of the stock to the plaintiff a corporation was organized by Yolker and Felthousen,, known as the Buffalo Steam Pump Company, and the assets and business of the firm were transferred to the corporation.

With a view of inducing outside parties to purchase some of the stock of the corporation a statement of the assets and affairs of the firm was prepared, under the direction of the defendant, and an affidavit was made by a Mr. Walker which purported to give a statement of the condition of the business and its assets, which was ■exhibited to parties with a view to induce them to purchase the stock.

Some of the particulars of the transfer of the assets and business ■of the firm to the corporation got into the case without objection, as did Walker’s affidavit. The plaintiff testified that the affidavit of Walker was exhibited to him by the defendant, while the negotiations which resulted in his purchase of the stock were pending, and influenced his mind in making the purchase.

The plaintiff offered evidence to establish that Walker’s affidavit ■did not represent the true condition of the affairs of the company, but greatly exaggerated its assets and business, and that the defendant, knowing that to be the case, exhibited it to him for the purpose of deceiving him. This evidence was received, against the defendant’s objection, upon the theory that it was competent to show an independent fraudulent act of the defendant, similar in character to the one in question, as bearing upon the question of the defendant’s intentions in the transaction.

It is doubtful if it was competent evidence for that purpose. It was quite remote in point of time, being two years or more prior to the time of the sale of the stock to the plaintiff, but, as heretofore stated, there was evidence tending to show that this affidavit of Mr. Walker was exhibited to the plaintiff while he was negotiating for, and before he purchased the stock, and he had testified that it influenced his mind in determining him to make the purchase; that it induced him to believe that the assets of the pump company which he was negotiating to purchase an interest in w^ere larger and of greater value than they really were. It was for that purpose probably competent evidence; and that was the light in which it was finally presented to the jury. They were charged that they were at liberty to consider it as evidence tending to show that the plaintiff might have been misled thereby.

We do not find anything in the defendant’s exceptions requiring a new trial.

The judgment and order appealed from should be affirmed.

Bradley, J., concurred; Ward, J., not sitting.

Judgment and order affirmed.


author: Bradley, J.:

text:
    Lizzie Briel, Respondent, v. The City of Buffalo, Appellant.

      Municipal corporation — obstruction in a city street — when the city is chcvrgeable with notice thereof.

    Where a pile of earth remains in a traveled street of a city for three or four nights continuously, the jury may, upon the trial of an action brought against the city by a person whose carriage has been overturned thereby, find that the city was chargeable with notice of the obstruction in the street, and was negligent in permitting it to remain there until the time of the accident.
    Appeal by the defendant, The City of Buffalo, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 3d day of May, 1895, upon the verdict of a jury rendered after a trial at the Erie Circuit, and also from an order entered in said clerk’s office on the 3d day of May, 1895, denying the defendant’s motion for a new trial made upon the minutes.

      Frank G. LaugKlvn, for the appellant.

      Marcy & Jackson and Wallace Tha/yer, for the respondent.
   Bradley, J.:

After daylight had disappeared on the evening of June 16,1890, the carriage in which the plaintiff was riding southerly on Niagara street, in the city of Buffalo, was overturned and she was injured. The accident was caused by a pile of earth which had been deposited in the street by the procurement of the owner of .the adjacent premises for the purpose of having it taken on to his lot, upon which some of the earth drawn there had been conveyed by wheelbarrows.

The recovery on the former trial was not supported because it did not then appear that the earth drawn and deposited at that place in the street, on any day prior to the evening of the injury, remained in the street any night before that in question, and, therefore, no negligence was imputable to the defendant upon the evidence. (Breil v. City of Buffalo, 144 N. Y. 163.)

Upon the trial now the subject of review', further evidence was given tending to prove that the pile of earth had remained there in the street three or four days and nights continuously up to the time of the accident. The place in question is in a populous portion of tbe city, and Niagara street, on either side of the street railway tracks, is much used for vehicles. And the length of time which the jury were by tbe evidence permitted to find this pile of earth had remained tliere was sncb as to enable them also to find that the defendant was chargeable with notice of the obstruction in the street, and, therefore, with negligence in permitting it to so remain there up to the time of the occurrence in question. (Kunz v. City of Troy, 104 N. Y. 344.)

The conclusion was also warranted by tbe evidence that the plaintiff was free from the imputation of contributory negligence.

The questions arising upon the conflict in the evidence and all other questions of fact were fairly submitted to the jury, and tlieir verdict is supported by the evidence.

There was no error in the rulings at tbe trial to tbe prejudice of tbe defendant.

The judgment and order should be affirmed.

Lewis, J., concurred; Ward, J., not sitting.

Judgment and order affirmed.


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    In the Matter of the Judicial Settlement of the Accounts of Rachel Steward and William I. Phillips, Administrators, etc., of Warner Steward, Deceased. Rachel Steward, Daniel Steward and Others, Appellants; Ella Steward and Others, Respondents.

      Widow’s share in her husband’s estate under chapter 406, Laws of 1889 — Statute of limitations as to money delivered to her husband — pay to a son for talcing care of his father’s property — insurance premiums on real estate — liability for an assessment completed before the death of the intestate.

    Where an intestate leaves a widow and a descendant or descendants, the widow, in a case which comes within chapter 406 of the Laws of 1889, is entitled to her dower right and to the “additional portion” of her husband’s estate given by section 1 of said act, and whore the value of the “ additional portion” added to the sum of §150, which, under section 2 of said act must be set aside by the appraisers for the widow and minor children, is less than $1,000, the residue of that sum must be made up by the appraisers out of the personal property.

      Where a wife is a claimant against her husband’s estate for a certain sum of money, and the testimony tends to show that she handed the money to her husband and told him to take care of it, and he, in reply, said that he would take it and pay it out towards his lands, and there was proof that he once tendered payment, and further, that it was contemplated that he should pay interest on the money, the relation existing between the parties is that of debtor and creditor and the ordinary rule as to the Statute of Limitations applies.
    Administrators may properly pay the son of a decedent for taking care of his father’s property after the latter’s death.
    While the right of administrators to pay insurance upon the real property of ' their intestate may be questionable, yet, where but a single payment has been made for a premium upon a policy covering both real and personal property, and it does not appear what proportion of the premium was paid upon each species of property, the appellate court will not disturb a decision of the surrogate allowing the payment.
    Administrators may properly pay taxes levied upon the real and personal property of their testator under an assessment made and completed prior to the death of the intestate.
    Appeal by Rachel Steward from so much of a decree of the Surrogate’s Court of the county of Chautauqua, bearing date the 22d day of December, 1894, and entered in the office of said surrogate,as. disallowed a claim filed by her against the estate of Warner Steward, deceased.
    Also an appeal by Daniel Steward and others from said decree of the surrogate of the county of Chautauqua, bearing date the 22d day of December, 1894, and entered in the office of said surrogate of Chautauqua county upon the final settlement of said estate.

      Horman M. Allen, for appellants Daniel Steward and ’ Cadwell.

      Sieharcl A. Hall, for appellant Rachel Steward.

      W. K Thrasher, for respondents Ella, Delia and Manly Steward.
   Bradley, J.:

Warner Steward died intestate in September, 1889, leaving surviving him a widow, Rachel Steward, and five children, some of whom were minors. This proceeding for final judicial settlement of the accounts of the administrators was instituted by said administrators in June, 1891.

The appraisers having set apart for the use of the widow and minor children personal property to the amount of $150, ascertained that the real estate of which the decedent died seized was of the value of $5,825, in which the value of the widow’s interest (as given by statute), exclusive of her dower right, was $570.35. And because this, with $150 added, was less in amount than $1,000, the appraisers set apart for the use of -the widow and minor children $129.65 of the personal estate.

It is urged that this was not permissible, and that, as the value of such interest of the widow with that of her dower right added, would produce a sum in excess of $1,000, it was not in the power of the appraisers in that connection to set apart any personal property for the use of the widow and minor children. The disposition of this question is dependent upon the construction of the statute as it existed at the time of the death of the intestate. By the section added to chapter 2 of title 5 of part 2 of the Revised Statutes, entitled “ of title to real property by descent,” it was provided that “if the intestate shall leave a widow and a descendant or descendants, then such widow, in addition to any interest to which she may be entitled under the preceding sections of said chapter 2, shall be entitled to the use during her life of an additional portion of the estate, not exceeding in value one thousand dollars.” (Laws of 1889, chap. 106, § 1.)

The next section of said act of 1889, which amended section 2 of chapter 157 of the Laws of 1812, contained the provision that “in case the interest of a widow in the real estate of a deceased husband, in addition to her dower right, and, together with said one hundred and fifty dollars, shall be of less value than one thousand dollars, then said appraisers shall set apart for the use of such widow’ or for the use of such widow or child and children, in the manner hereinbefore prescribed, personal property, -which, together with said real estate, shall amount to one thousand dollar’s in value.” (Id. § 2.) By the 1st section of said act of 1889 the widow was given an interest in the real estate left by her husband, in addition to her dower right therein,'and such is her interest had in view by the provision in the 2d section referring to the interest of a widow in the real estate in addition to her dower right.” This is descriptive of the interest, the value of which when, with $150 included, is less than $1,000, the residue of the latter amount is to be made up of personal property set apart for the use of the widow and minor children. It seems to me that such is the fair and necessary meaning of the provision. I am, therefore, unable to adopt the construction given to it in Matter of Daggett (29 N. Y. St. Repr. 864; 9 N. Y. Supp. 652; 2 Connoly, 230); Daggett v. Daggett (37 N. Y. St. Repr. 810 ; 14 N. Y. Supp. 182). The interest of the widow, in addition to her dower right, does not include the latter or bring it into consideration in making the value upon which the duty of the appraisers to set apart personal property is dependent, or in ascertaining the amount to be set apart for the use of the widow and minor children. The words “in addition to her dower right” are wprds of description and limitation of the widow’s interest, which, with $150 added in its relation in amount to $1,000, determines the extent in value of the personal property to be set apart pursuant to such direction of the statute. This was properly done by the appraisers in the present case. The provisions referred to of the act of 1889 did not long exist. They were repealed by Laws of 1890, chapter 173.

The claim made by Rachel Steward against the estate is for $600, which her husband received from her upwards of twenty years before his death. She presents her claim in form as a deposit of that amount of money with the intestate. The objection was made that the claim was barred by the Statute of Limitations. If the husband was the depositary of the money as such, the statute is nc bar to the claim. (Boughton v. Flint, 74 N. Y. 476.) The evidence of the person who paid the money to the claimant is that he handed it to her and that “ she handed it to.her husband and told him to take care of it,’,’ that he (the husband) took the money and told her he “ would pay it out toward his lands.” He never repaid the money to her. It appears that on several occasions, and up to near the time of his death, he stated that he had had the money and intended to pay her. And there is evidence that on an occasion in 1881 he received from a person a sum of money in excess of $600 in the presence of his wife and passed it across the table to her and requested her to take it in payment of the money he had had from her,, and that she told him to keep the money until she called for it. On his further examination the witness testified that the intestate laid the money on the table and said to his wife, “Take that toward the money that I owe you.” The witness could not say that she had her hands on the money. The person who paid the money testified that the decedent said to his wife : “‘You take this money on what I am owing; you,’ and she said, ‘I don’t want it,’ and he took the money.” There does not seem to have been any special arrangement at the time he received the $600 from Ms wife or afterwards to keep or invest it for her, and there is evidence to the effect that it was contemplated that he would use the money for his own purposes and pay her interest upon it. "While there may be some evidence to permit the inference that the husband received the money as depositary of it for his wife, the conclusion of the surrogate, that the elements essential to a dejoosit were wanting in the transaction, was fairly warranted by the evidence, and that, therefore, the allowance of the claim was barred by the statute. (Sheldon v. Sheldon, 133 N. Y. 1; Mills v. Mills, 115 id. 80.)

The present case furnishes an instance where the Statute of Limitations is made available to bar a claim after the death of a debtor who, up to the time of his death, recognized his liability and repeatedly promised to pay it, and who, on the day preceding his death, when he was without hope of living much longer, expressed his desire that it, with interest, be paid from his property.

Several objections are made to the accounts as rendered by the administrators in this proceeding,' and some exceptions are taken to the rulings or conclusions of the surrogate in that respect.

It seems that the oats, corn, hay and straw on the premises at the time of the death of the intestate were of the value of $211.50. This was fed out on the farm, and the surrogate charged the administrators with one-half of that amount. The evidence on the subject was somewhat vague as to what portion of it was used for the stock belonging to the estate, but we are inclined to think the disposition made of the question was permitted by the evidence. There was a payment made to one of the sons of the decedent for taking-care of the property after the death of his father, for a portion of which sum so paid to him the administrators were allowed credit. In this there was apparently no error. They also paid a small sum for insurance upon the buildings and personal property on the premises. IIow much for each does not appear. While their right to- pay it as to the realty may be questionable, we think there is no occasion upon tbe evidence to disagree with the views of tlie court below on tbe subject. (Herkimer v. Rice, 27 N. Y. 163; Clinton v. Hope Ins. Co., 45 id. 454.)

Tbe administrators paid some taxes upon tbe real and personal property upon an assessment made and completed by tbe assessors prior to the death of the intestate. The decedent’s liability to pay the tax levied upon the assessment was fixed. (Mygatt v. Washburn, 15 N. Y. 316 ; Clark v. Norton, 49 id. 243; Boyd v. Gray, 34 How. Pr. 323.) There was no error in allowing them credit for the amount so paid.

Without specifically referring to other questions raised by. the appellants, we think they are not such as to fairly require the direction for a further accounting by the administrators.

' The decree of the Surrogate’s Court should, therefore, be affirmed, with costs of this appeal to tbe respondents, payable out of the estate.

Lewis and Ward, J’J., concurred.

Decree of the Surrogate’s Court of Chautauqua county affirmed, with costs to the respondents, payable out of the estate.


author: Davy, , J.:

text:
    Edwin Smith, as Executor, etc., of Eliza A. Evans, Deceased, Appellant, v. Mary A. Chase and Mortimer D. Chase, Respondents.
    ' Contract — will — power in trust of sale for distribution — ■ title, in whom vested.'

    •Eliza A. Evans, being seized pf a leasehold interest in certain premises, assigned •her interest to her daughter, Mary A. Chase, a married woman, reserving the ' right to occupy the property with her husband during their lifetime.
    Subsequently Mrs. Evans and her husband released and surrendered to Mrs. Chase their right of occupation, and thereafter Mrs. Chase, by an instrument in writing, assigned to Mrs. Evans all her interest in the lease; and at the same time, and in consideration of such- assignment, Mrs. Evans, by an instrument in writing, rc-assigned the same premises to Mrs. Chase, reserving the right to their use during, her lifetime and the right to rent or sell the same at her option, so much of the proceeds of any sale as were not used by her during'hej- lifetime to belong to Mrs. Chase.

      Mrs. Evans died and left a will in which, after directing her executor to sell and turn into money the premises in question, and also her personal property, except some furniture specifically bequeathed, she bequeathed all her property, including the proceeds of the sale of the premises in question, equally to her five children.
    In an action brought by the executor of Mrs. Evans against Mrs. Chase to recover the premises, Mrs. Chase contending that they belonged to her under the written agreements,

      Meld, that the power of sale given by the will to the executor for the purpose of distribution did not vest him with title to the real estate, nor did the provisions, of the will create a valid statutory express trust;
    That the power conferred might, under other circumstances, have been exercised as a power in trust, but that, in such case, the title would descend by statute to the heirs at law, subject to the execution of the power of sale, and would not. vest in the executor;
    That the manifest intent of Mrs. Evans, as expressed in her written assignment, was to transfer to Mrs. Chase the premises, reserving to herself their use during life, as well as a power to sell, but that, in the event that Mrs. Evans did not execute the power, the title should remain in Mrs. Chase;
    That, under the two written agreements described, the title to the premises vested upon the death of Mrs. Evans in Mrs. Chase absolutely.
    Appeal by the plaintiff, Edwin Smith, as executor, etc., of Eliza A. Evans, deceased,'from' a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Cattaraugus on the 10th day of January, 1895, upon the" report of a referee.
    / William II. Henderson, .for the appellant.

      George dole, for the respondents.
   Davy, , J.:

This is an action of ejectment to recover possession of a house and lot situate in the village of Salamanca, in the county of Cattaraugus, brought by the plaintiff as executor of the will of Eliza A. Evans, deceased.

The appellant contends that Mrs. Evans died seized of a leasehold interest in the house and lot referred to, and that the power of sale, as well as the title to such leasehold interest, became vested in fcim by virtue of the provisions of her will.

It appears from the evidence that the testatrix died in February,. 1881, leaving five children, of whom the defendant Mary A. Chaso is one, and also leaving a last will and testament in which she named the plaintiff as sole executor. It also appears that in 1874 the testatrix assigned her interest in the property in question to her daughter, Mary A. Chase, reserving, however, the right to occupy it with her husband during their lifetimes. In 1876 Mrs. Evans and her husband released and surrendered to Mrs. Chase the right to occupy the house and lot. Thereafter, and in the year 1877, Mrs. Chase executed and delivered to her mother an instrument in writing, of which the following is a copy: For value received I hereby sell, assign, set over and transfer to Eliza A. Evans, of Salamanca, N. Y., all my right, title and interest in and to the within lease and all buildings situate thereon, with all the advantages to be derived therefrom; ” and contemporaneously therewith, and as a part of the game transaction, and in consideration of the last assignment, Mrs. Evans gave back an instrument in writing, in which she assigned and - transferred to Mrs. Chase the same premises, reserving and retaining, however, the use of the same for her benefit, use and support during her lifetime, and reserving the right to rent or to sell and dispose of the same at her option, and in the event that the avails arising from the sale of the premises were not used by her during her lifetime, then such avails should belong to Mrs. Chase.

After Mrs. Evans’ death, which was in February, 1887, the plaintiff leased the premises in controversy for a short time, but when they became vacant Mrs. Chase took possession of them and refused to vacate or remove therefrom for the reason, as she contends, that the right to possession thereof belongs to her under the contracts made between her and her mother of duly, 1877.

If we were to assume that the title to the leasehold interest in the premises was in Mrs. Evans at the time of her death, we do not see even then how the plaintiff can maintain this action.

The provisions of the will which bear upon the question under discussion, are contained in the first and second paragraphs, which read substantially as follows: I give my parlor furniture, the same that I had of Luzene Evans, to my daughter, Mary Chase, wife of Mortimer Chase, of Salamanca. That I direct my executor to sell and turn into money my house and lot on State street in said village of Salamanca, and also all the personal property and household furniture that I may have at the time of my death, excepting the parlor furniture above stated. Second. That I give and bequeath equally to my five children hereinafter named all my property, viz., the proceeds of the sale of said house and lot, also the proceeds of the sale of my personal property, also the money I have in the bank at the time of my death, or in notes or other security.”

It is apparent from the provisions of this will that no trust estate in the house and lot in question was vested in the plaintiff as executor. The main purpose of the testatrix, as appears from the context of the will, was to give her estate, remaining after payment of her debts, equally to her five children. She simply imposed upon the executor the duty of selling the property and making the division.

It has been repeatedly held that a power of sale in the executor for the purpose of distribution does not vest him with title to the real estate.

The provisions of the will do not create a valid express trust Under the statute. The power conferred might be exercised as a power in trust. But in such a case the statute expressly provides that the title to the real estate shall descend to the heirs at law, subject to the execution of the power of sale. (1 R. S. 728, 729, §§ 55, 58, 59.)

The language of the will shows clearly that the testatrix did not even intend to create a trust. There was no valid devise of the house and lot to the executor or to any other person. (Cooke v. Platt, 98 N. Y. 35.)

It is an elementary rule that in an action of ejectment it is only the legal rights of the parties, as distinguished from their equitable rights, that are to be considered, and the plaintiff must recover, if at all, upon the strength of his own title. It was incumbent upon him to show upon the trial that he had the title either absolutely or in trust, and that he was entitled to the possession of the premises at the commencement of the suit.

The title to the premises must be in somebody, and if not in Mrs. Chase, under the assignment from her mother, then it must vest in the heirs of the testatrix, and they alone have a right to the property and the exclusive right to maintain an action in ejectment for its possession.

Tire writing under which Mrs. Chase claims title to the premises has received a construction by this court in another action between the same parties (reported in 21 N. Y. Supp. 896). .In that action the^ plaintiff, as executor, sought to foreclose a mortgage executed by the defendant Mary A. Chase to the testatrix. Mrs. Chase contested the foreclosure on the ground that the consideration money for’the mortgage was derived from the 'sale of a portion of these premises in question; that under the contract they belonged to her. The, General Term evidently reached the conclusion that the instrument was a valid contract. Mr. Justiee Lewis, in delivering the opinion of the court, said that it was the duty of the executor “ to’ collect the money due upon the mortgage, and, if after the settlement of the estate any of the money should be left, the defendant would be entitled'to it under said contract.”

The intent of Mrs. Evans, as expressed in the written assignment, is wery plain. She transferred to Mrs. Chase the fee to the premises but reserved the use thereof during her lifetime, and the power to sell the property if necessary, but in the event that the power of. sale was not executed, then the title should remain in Mrs. Chase. We are of the opinion, therefore, that under the two written instruments referred to, the fee to the premises in question vested absolutely in Mrs. Chase upon the death of her mother.

The judgment, therefore, should be affirmed, with costs to be paid out of the estate of the testatrix.

Lewis, Bradley and Ward, JJ., concurred.

Judgment affirmed, with costs.


author: Davy, J.:

text:
    Jacob F. Franzen, as Assignee for the Benefit of Creditors of The St. Paul German Insurance Company, Respondent, v. Frederick Zimmer, Appellant.

      Assignment for creditors by a foreign insurance corporation, sustained —presumption that the common law exists in another State — comity ■ — ■counterclaim by agent against assignee — revocation of agency — when the right of set-off must attach.

    The courts of the State of New York will assume, iu the absence of proof to the contrary, that the common law prevails in another State.
    An insolvent corporation could, at common law, make a general assignment in trust to an assignee for the benefit of its creditors, and as such an act is not in conflict with the laws of the State of New York, nor against public policy (when done under the laws of another State), the courts of the State of New York will recognize its validity and, under the rule of comity between the States, will permit a foreign assignee to prosecute within this State such legal proceedings and suits as may be necessary to collect the debts of the corporation and to recover the trust property.
    Where it appears that the agent of a foreign insurance corporation has made contracts and issued policies without objection upon the part of the State authorities, the courts of the State of New York will assume that the foreign corporation has complied with the requirements of the laws of this State in regard to its authority to transact business within the State.
    Where a person is simply the agent of a foreign insurance company and the company jnakes a general assignment for the benefit of creditors and the agent has notice of the fact, he cannot, when sued by the assignee for premiums received but not paid over to the assignee, interpose a counterclaim for reinsuring the policyholders for unearned premiums, -the amount represented by which ho paid to policyholders after the corporation had made the assignment.
    An assignment for the benefit of creditors operates as a revocation of the authority of an agent who has been acting as such for the corporation which makes the assignment.
    Tlie right of set-off must attach at the time when a general assignment for creditors is made. It cannot arise afterwards, for the reason that the claim in favor of the estate has passed to the assignee, and to allow a set-off would prejudice other creditors.
    Appeal by tbe defendant, Frederick Zimmer, from a judgment of tlie Monroe County Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 11th day of September, 1894, upon the decision of the court reversing a judgment of the Municipal Court of Rochester.

      II. B. IlaZloch, for the appellant.

      John M. Murphy, for the respondent.
   Davy, J.:

The plaintiff, as assignee, etc., of the St. Paul German Insurance Company of St. Paul, Minnesota, brings this action to recover $399 from the defendant, which he, as agent of the assignor, had collected on policies of insurance issued by the company.

It appears from the evidence that in 1891 the defendant was appointed agent of said insurance company, and continued, to act in that capacity until April, 1892, when the company made a general assignment to the plaintiff for the benefit of its creditors.

The defendant during the months of December, 1891, and January and February, 1892, issued policies of insurance for said company to various persons in the vicinity of Rochester, N. Y., amounting to over $100,000, and received $873.51 as premiums on said policies, out of which sum he was entitled to retain twenty per cent for commissions, and a small sum which he had advanced for the company, leaving in his hands at the time of the assignment $399 due the insolvent corporation.

-The action was tried in the Municipal Court of the city of Rochester, before a jury, who rendered a verdict for the defendant. An appeal was taken to the County Court, and the judgment of the lower court was reversed.

-The learned counsel for the appellant contends that the plaintiff cannot maintain this action, for the reason that there was no proof given upon the trial of the statute law of Minnesota under which the assignment was made, and for that reason alone the jury was justified in finding a verdict for the defendant. He also contends that, even if the action could be maintained, the amounts which the defendant paid out for reinsuring the policyholders for the unexpired terms of their contracts were properly allowed by the court as an offset to the plaintiff’s claim.

The defendant, in his answer, admits the incorporation of the insurance company, and that he acted as its agent and issued policies, and received the sum of $873.51 for premiums, and he also admits that he received a notice of the assignment before he canceled the policies and paid for reinsuring the holders thereof. He contends, however, that he had no knowledge or information sufficient to form a belief as to whether the insurance company had made an assignment to the plaintiff, as alleged in the complaint. He also sets up a counterclaim of $800.74 for the unearned premiums, assigned to him by the holders of said policies.

Under the admissions in the answer the plaintiff was only required to- show upon the trial that the insolvent corporation had made a general assignment to him for the benefit of its creditors. That was done by the introduction of an exemplified copy of the deed of assignment, duly authenticated, as required by sections 947 and 952 of the Code of Civil Procedure. The plaintiff, not willing to rest hi» case upon this evidence and the admissions in the answer, called the defendant as a witness, who testified that shortly after he received notice of the assignment he immediately proceeded to call in all outstanding policies which he had issued for the company, and canceled them, and reinsured the holders thereof in other companies. He took assignments of the claims for unearned premiums, and filed them with the assignee as claims against the insolvent corporation.

We have a right to assume, in the absence of proof to the contrary, that the common law prevails in the State of Minnesota. It has been held that where a party relies upon the fact that some general rule of the common law is in force in another State, he need not give any proof of that fact, for the reason that the court will presume the law of a sister State to be the same as its own law,, and to be in its main outlines the common law. (Holmes v. Broughton, 10 Wend. 75 ; Savage v. O'Neil, 44 N. Y. 298.)

Judge Peckham, in Vanderpool v. Gorman (140 N. Y. 568), says: “ There can be no doubt that an insolvent corporation could at common law make a general assignment in trust to an assignee for the benefit of its creditors.” The learned judge says: “We cannot presume that the common law has been altered in New Jersey * * * without some proof to that effect.”

The defendant offered no evidence upon the trial showing that the common-law rule pertaining to voluntary assignments for the benefit of creditors did not prevail in the State of Minnesota.

As the common law permits such an assignment, and as it is not in conflict with any law of this State or against public policy, we must, therefore, recognize its validity.

In the case of Ockerman et al. v. Cross et al. (54 N. Y. 29) the court held that “ a voluntary assignment by a debtor residing in another State or country, valid by the laws of his domicil and not invalidated by any law of this State, operates as an assignment of the debtor’s property situate in this State.” (Warner v. Jaffray et al., 96 N. Y. 248.)

This is not an assignment that comes in conflict with the claims of domestic creditors. It is a question between the assignee and the defendant, who, as agent, has funds in his possession belonging to the assignee, which he refuses to turn over to him, because, as he contends, there is no law authorizing the assignee to maintain this action. I am not aware of any rule of public policy that requires the courts of this State to protect him in his unlawful efforts to retain that which does not belong to him. The Minnesota assignment vested in the plaintiff all the personal property belonging' to the assignor located in this' State just as effectually as if it was located in the State of Minnesota, and' for the purpose of obtaining possession of it he is entitled, under the rule of comity between the States, to prosecute such legal proceedings and suits as may be necessary to collect the debts and to recover the trust property.

The term comity, as defined in Bouvier’s Law Dictionary, is “ courtesy; a disposition to accommodate. Courts of justice in one State will, out of comity, enforce the law’s of another State, when by such enforcement they will not violate their own laws or inflict an injury on some one of their own citizens.” -

This rule contributes largely to produce friendly intercourse between .the States and individuals. It permits them to sue in each other’s courts, and to travel and transact all kinds of business in each other’s territory when they are not prevented by some positive law of-the State.

Judge Denio, in Petersen v. Chemical Bank (32 N. Y. 21), in discussing the rules of comity between the States, says: The title of foreign.statutory assignees are recognized and enforced here when they can be without injustice to our own citizens and without prejudice to the rights of creditors, pursuing their remedies here under our statutes; provided, also, that such titles are not in conflict with the laws or public policy of our State.

The learned counsel for the appellant also contends that this-action cannot he maintained for the reason that no proof was given upon the trial that the company had a right to transact business in this State.

It appears that the defendant, as agent of the corporation, made-contracts and issued policies of insurance without any objection ©n the part of the State authorities. We must, therefore, assume that the corporation has complied with the requirements of our laws as-to its authority to transact business in. this- State. The defendant, by his own conduct, is estopped from claiming that his acts are-illegal. . It would be contrary to the rules of equity and justice to-permit him to raise that objection for the purpose of shielding himself from his contract obligations.

The appellant’s counterclaim, in my judgment, is not availableIlis agency was not coupled with any interest. He was in no respect personally obligated to cancel the policies and reinsure the holders thereof for the unexpired terms of the policies. His authority to act as agent ceased when the assignment took effect. He knew when he canceled the policies and paid for reinsuring the holders thereof that the corporation had ceased to exist for the transaction of business. The rule is well settled that the principal, in whose behalf the act is done, must be in existence at the time the act was performed. The assignment, therefore, which was for the benefit of creditors, operated as a revocation of the agency.

In the case of Fera v. Wickham et al. (135 N. Y. 229) Judge Gray says: “ The right of set-off must attach at the time of the making of the assignment. It cannot arise afterwards, for the reason that the claim in favor of the estate has passed to the assignee, and to allow a set-off would be to the prejudice of other creditors.”

The judgment, therefore, of the County Court reversing the judgment of the Municipal Court must be affirmed, ' with costs against the appellant.

Lewis, Bradley and Ward, JJ., concurred.

Judgment of County Court affirmed, with costs.