author: HaediN, P. J. :

text:
    Angeline Frier, Respondent, v. The President, Managers and Company of the Delaware and Hudson Canal Company, Appellant.

      Negligence — fire earned by the sparks of an engine — proof that the grade was heavy is competent.

    Where a person brings an action against a railroad corporation to recover damages upon the ground that a fire arising upon the premises of the defendant was communicated to and ran upon the land of the plaintiff, it is incumbent-upon the plaintiff to prove that the original fire resulted from the negligence of' the corporation.
    Upon the trial of such an action it is competent for the defendant to prove that at the point where the fire occurred the grade of the railroad was steep, and that, engines drawing trains up the grade are obliged to labor hard, and that on that account the engines in so doing emit more sparks than they otherwise would..

      Appeal by the defendant, The President, .Managers and Company of tiie Delaware and Hudson Canal Company, from a judgment of tlie County Court of Broome county in favor of the plaintiff, entered in the office of the clerk of said county on the 24th day of December, 1894, affirming the judgment of a justice of the peace, with notice of an intention to bring up for review on such appeal an order entered in said clerk’s office on the 24th day of December, 1894, affirming said judgment of said justice of the peace.

      George F. Lyon and Harvey L>. Húnman, for the appellant.

      James P. Oallan, for the respondent.
   HaediN, P. J. :

Assuming that the evidence sufficiently shows that the damages sustained by the plaintiff in the loss of her fence were occasioned by the fire communicating from the premises of the defendant to the premises of the plaintiff, according to the doctrine laid down in Webb v. Rome, W. & O. R. R. Co., (49 N. Y. 420), it was incumbent upon the plaintiff to give evidence to establish the allegation of the complaint that the defendant had been guilty of negligence in causing the fire upon its own premises. In the Webb case it was said there was abundant evidence to require the submission to the jury of the question relating to the defendant’s negligence upon its own premises, and it was, therefore, held in that case that where the fire spread to the immediate adjacent premises of the plaintiff, the defendant was liable for the damages caused thereby. This brings us to the inquiry as to whether the evidence given at the trial was sufficient to warrant the jury in finding negligence on the part of the defendant in causing the fire which spread from its premises to the plaintiff’s. The evidence fails to indicate any particular engine of the defendant which ignited the material upon the defendant’s premises. The defendant had a right to operate its railroad by means of engines traversing its tracks and was only required to use reasonable care and prudence in the operation of the same; and it was incumbent upon the plaintiff to establish, by evidence, that in its operation of its engines it had failed to exercise such care and prudence.

The witness Smith testified that when passing near the railroad he saw a train go up, and soon saw a fire start up on this farm, and also on Mr. Guernsey’s farm along the railroad lands; ” and after such observation he went home to eat his dinner and returned and found the stump fence on Frier’s place on fire in a number of places; and he adds: “ The field where the stump fence was on fire extended to the railroad lands,” and that he had not noticed any fire that day until that time either on the railroad or on the farm. In the course of his cross-examination he says that it was a freight train going east on the railroad, and that there was a pusher on this train, and that he was not able to tell the number of the lead ■engine ” or of the pusher, and that he was unable to give the number ■of the train, and that he first saw the fire on the company’s lands.

The witness Irving Shear testified that he first saw the fire on the 5th of April, 1893, near the railroad at the Jeffers crossing.

The witness Prentice, against the objection of the defendant, was permitted to testify that the fire, in his opinion, passed from the railroad to the lands of the plaintiff; and he adds : It was burned over from the railroad line clear up.”

It appeared by the testimony given by the defendant that “ the grade along the Jeffers crossing is about sixty feet to the mile.”

"We think the plaintiff’s evidence failed to sustain the allegation of negligence on the part of the defendant in causing the fire on its own premises. (Flinn v. N. Y. C. & H. R. R. R. Co., 142 N. Y. 11; Frace v. N. Y., L. E. & W. R. R. Co., 143 id. 182.)

(2) The defendant offered to ¡Drove “that in going east over ■defendant’s road from the city of Binghamton, the grade of the road opposite this Frier farm is steep; that engines drawing trains up this grade are obliged to labor hard, and that on account ■of such labor the engines emit more sparks.” This was objected to as immaterial and the objection was sustained. We think it was ■error to reject the evidence offered.

In Flinn v. N. Y. C. & H. R. R. Co. (142 N. Y. 19) it appeared that trains passing over an up grade emit from the engines sparks, and in speaking of that evidence Earl, J., says: “ The inference from this evidence is that the great emission of sparks was inevitable in drawing trains up such a steep grade, and if it was not inevitable it would have been easy for the plaintiff to have furnished some proof showing that it was due to the defective condition of the engines and to no other cause. Under such circumstances the fact of the emission of large quantities of sparks furnishes no evidence whatever to charge the defendant witli negligence. If there had been evidence that any particular engine emitted an unusual quantity of sparks of an unusual size that might, within the authorities cited, have furnished prima facie proof that the engine was out of repair, and the burden would have been cast upon the defendant to show that it was in proper condition and that the emission of sparks was inevitable, notwithstanding the use of any ordinary care.” Near the close of the opinion in that case it was said that the plaintiff, in order to recover against the defendant, “ must show that it violated some legal duty it owed him, and this he failed to do.” We are of the opinion that there was a failure in the case in hand to give evidence sufficient to warrant a finding of negligence on the part of the defendant in causing the fire upon its own premises which spread to the premises of the plaintiff, and we also think it was error to exclude the evidence offered already mentioned.

The foregoing views lead to a reversa,!

MaktiN and MebwiN, JJ., concurred.

Judgment of the County Court and of the Justice’s Court reversed, with costs.


source: Caselaw Access Project

author: HaediN, P. J.:

license: Public Domain

text:
    Lydia H. Cross, Respondent, v. The City of Elmira, Appellant.

      Negligence — sufficient written notice of personal injury to a municipal corporation n — amount- of damages.

    In an action brought against a municipal corporation to recover damages for personal injuries caused by the defendant’s alleged negligence in permitting a sidewalk to be in an unsafe condition, it appeared that the city charter required the presentation by. the claimant to the mayor or to the city attorney of a written notice describing the time and location of the place where such injury occurred and the cause and extent of the injury. The notice served stated that the plaintiff was walking upon a plank sidewalk on the north side of East Washington street, between Oak and Pratt streets. It was shown that this plank sidewalk was 150 feet long, and that the distance between Oak and Pratt streets was 368 feet. It was not claimed on the trial that the city had been misled by the generality of the notice.

      Held, that the notice was not too general in its terms, and sufficiently located the place of the accident.
    A working woman, about thirty-three years of age, apparently in a healthy condition, who followed an occupation in which she was able to earn wages by her manual labor, sustained injuries which impaired the use of her knees, obliged her to use crutches, and compelled her to lose her employment.

      Held, that a verdict of 88,500, in an action brought by her to recover the damages thus caused, was not excessive.
    Appeal by tlie defendant, Tlie City of Elmira, from a judgment of the Supreme Court in favor of the plaintiff, entered in tlie clerk’s office of the county of Chemung on the 26th day of May, 1894, upon the verdict of a jury for $2,500 rendered after a trial at the Chemung Circuit, and also from an order entered in said clerk’s office on the 9th day of June, 1894, denying the defendant’s motion for a new trial made upon the minutes.
    Plaintiff’s complaint states that the defendant was guilty of negligence in “ neglecting to perform the-powers aforesaid, and failing to perform its said duties; the defendant, through and by its officers and agents, negligently permitted and suffered the plank sidewalk on the north side of East "Washington avenue between Pratt and Oak streets, the said street being a public highway of said city on the 21st day of October, 1891, to be and remain in a rotten, decayed, defective and dangerous condition, some of the planks therein having become decayed to such an extent as to leave large holes in the said walk and other plank theréin having been entirely removed therefrom, thereby leaving large holes and openings in said walk. Into one of such holes on the evening of the said 21st day of October, 1891, the plaintiff, then and now an inhabitant of said city, while lawfully and carefully walking on said sidewalk, without negligence on her part, stepped, and was thereby violently precipitated and thrown upon the adjoining concrete walk or ground, because of the aforesaid negligence of the defendant as aforesaid.” The complaint states the damages sustained by the plaintiff, and that she was “ injured in her person, both of her knees and knee pans being seriously bruised and injured, and she was in all respects greatly hurt, bruised and wounded, and was sick, sore, lame and disordered, and so remained and continued for a long space of time, to wit, during all the time since the happening of said accident, and is still so disabled at the commencement of this action, during all of which time plaintiff lias suffered great and severe pain, suffering and injury, and lias been hindered and prevented from performing and transacting her necessary affairs and business.” It also alleged that she had been obliged to, and did necessarily pay, lay out and expend and become liable for the payment of large sums of money in and about endeavoring to bo cured; and also that “ within three months of the happening of such injury and more than ninety days before the commencement of this action, a duly verified claim for damage was presented by and in behalf of the plaintiff to the mayor of said city, and presented for payment to the common council.”
    Defendant’s answer admits that it is a municipal corporation created under and by virtue of an act of the Legislature, as alleged in the complaint. It contains several denials, and an averment “ that the plaintiff by her own negligence and carelessness contributed to the alleged injury.”

      Jamies Bacon, for the appellant.

      Knipp <& Ola/rhe and Boswell B. Moss, for the respondent.
   HaediN, P. J.:

October 21, 1891, the plaintiff passed northerly on Oak street until she reached the north side of East "Washington avenue, and while passing between Oak street and Pratt street she stepped into a hole in the plank and fell on the cement walk, striking upon both of her knees and received the injuries mentioned in her complaint, and minutely described in the evidence given at the trial. There was no sidewalk at the time on the south side of East Washington avenue between Oak and Sullivan streets, which is the street next east of Pratt street. As the plaintiff passed along the sidewalk she knew there were holes in it, and she testifies that she went carefully along, and when she stepped into the hole she was pitched forward and struck her knees on the tar walk, which joined on to the plank walk. The hole which she fell into was about six inches from the end of the tar walk, and she testifies that when she fell she hurt her knees badly. Abundant evidence was given tending to show that the walk at and near the place where she received the injuries was out of repair and had been so for a year or more. While the plaintiff was giving evidence as to the defective condition of the walk in question, tbe court inquired of the defendant’s counsel, viz. : “ I understand you don’t make any serious contention as to the condition of the walk,” and the defendant’s counsel in response thereto said: “We cannot help but concede that this walk was somewhat out of repair.” In the course of the charge the court observed : “ The defendant here has practically made no contest at all upon the condition of this walk, or the length of time it had been there. Therefore, gentlemen, you will take little time to pass upon the question of the defendant’s negligence inasmuch as the defendant’s attorney does not here contest it.” No exception was taken to tha-t part of the charge. Upon all the evidence furnished by the plaintiff it was proper for the court to submit the question of her freedom from contributory negligence, as one of fact, to the jury. (Dale v. City of Syracuse, 71 Hun, 449; Beltz v. City of Yonkers, 74 id. 73; Sherman v. The Village of Oneonta, 49 N. Y. St. Repr. 267; S. C. affd., 142 N. Y. 637; Leopold v. President, etc., 74 Hun, 137.)

(2) By several motions for nonsuit and by objections and exceptions to evidence the appellant raised the question upon the trial as to the sufficiency of the notice of the plaintiff’s claim given to the city, which the statute requires as a condition precedent to the right to maintain the action. In chapter 535 of the Laws of 1884, at page 649, the 99th section of the charter of the appellant was amended so as to read as follows : “ All claims against the city for damages or injury alleged to have arisen from the defective, unsafe or dangerous condition of any street, highway, bridge, culvert, sidewalk or crosswalk of or in said city, or from negligence of the city, authorities in respect to any such street, highway, bridge, culvert, sidewalk or crosswalk, shall, within three months after the happenings of such damage or injury, be presented by or in behalf of such claimant to the mayor or city attorney in writing, signed by the claimant or his agent or representative attorney and duly verified by one of such parties, describing the time and location of the place where such injury occurred, cause and extent of the damage or injury. The omission to present such claim as aforesaid within said three months shall be a bar to any action or proceeding therefor against the city.” It appears by the evidence that the distance between Oak street and Pratt street is about 368 feet, and that on the north side of East "Washington avenue there was - a plank sidewalk for about a distance of 150 feet. The notice given by the plaintiff was to the effect that while walking eastward on the plank sidewalk on the north side of East Washington avenue between Oak and Pratt streets in said city, I (she) stepped -into a hole in the said sidewalk, which had been negligently permitted to be and remain therein; and the said sidewalk then being in a defective, unsafe and dangerous condition.” It was contended at the trial in behalf of the defendant that the notice was too general, and in response to such contention considerable evidence was received tending to show that the defendant was not misled by the language used in the notice; and at the close of the evidence when the question was again brought to the attention of the court as to the sufficiency of the notice the judge inquired of the counsel for the defendant, viz.: “ Do you desire me to submit to the jury the question as to whether the city was misled ? ” And the defendant’s counsel responded: “ No, sir.” After some discussion between the court and counsel, the judge again observed : Do you desire to go to the jury upon the question as to whether they were misled by the generality of this notice ? ” And the answer of the defendant’s counsel was: “ No, sir.” And in the course of the ruling made by the court in refusing to nonsuit upon the ground that the notice was insufficient the court observed to the defendant’s counsel, viz..: “ If you desire to, I will submit to the jury the question as to whether the city was misled by the general nature of that claim. If you don’t care for that then I will hold as a matter of law that the notice of the claim is sufficient, and submit the case to the jury upon the other question.” To that ruling the defendant’s counsel took an exception. The language used in the defendant’s charter differs slightly from the language found in the charter of the city of Syracuse-referred to in Paddock v. City of Syracuse (61 Hun, 8). In that, case the written notice was required to be given “ specifying the time, place and cause of such injury;” and, according to the language in the statute now before us, the notice is to be given “ describing the time and location of the place where such injury occurred.” In the Paddock case the case of Noonan v. City of Lawrence (130 Mass. 161) was referred to, which stated: “The notice must, to be sufficient, be so reasonably specific as to time, place and cause as to be of - substantial assistance to tlie proper authorities in investigating the question of their liability; ” and the conclusion reached in the Paddock case was that a substantial compliance, by the plaintiff, with the provisions of the statute was required.

In Sullivan v. City of Syracuse (77 Hun, 442) a notice that had been given fell under consideration and it was in effect held that a substantial compliance by the plaintiff with the provisions of the statute was sufficient.

In Werner v. City of Rochester (77 Hun, 35), where a similar question was presented, Haight, J., said: “ This statute should receive a reasonable construction. The time, place and circumstances should be given with reasonable accuracy so as to enable the officers charged with the duty of investigating the circumstances to determine whether the claim is meritorious. We do not tliinlc this statute contemplates that a person injured should be required to give the exact time when it occurred, for this in many cases would be quite impossible. Neither do we think that the statute contemplates that he should be put to the expense of employing a surveyor to accurately locate the place where the accident occurred.” In view of all the circumstances disclosed by the evidence we are of the opinion that the ruling of the trial judge to the effect that the notice was sufficient ought not to be disturbed.

(3) We think the evidence presented a question of fact for the jury to determine whether the injuries which the plaintiff received caused traumatic synovitis. While there was a conflict relating to the question as to whether the condition in which she was weeks and months after the injury was attributable to the injuries which she received, or whether they arose by reason of her being afflicted with rheumatism, we thiuk the question of fact was one proper to be determined by the jury, and ivas carefully presented to the jury by the trial judge, and that their verdict on that subject should be approved.

(4) Prior to the accident the plaintiff, a woman about thirty-three years of age, was apparently in a healthy condition, following an occupation in which she was able to earn by her manual labor wages. Assuming, as we must, that according to the finding of the jury that the injuries wbicli she received caused the suffering which she was called upon to endure by reason of the loss of the use of her knees and causing them to be swollen and her legs to be comparatively useless, after suffering from treatment at home and in a liospital, and the necessary expense in procuring the same, and being subjected repeatedly to blisters and cauterizations, which have been found insufficient to work restoration to her of the usefulness of her limbs, leaving her in a condition that she has been obliged to use crutches and is incapable of standing upright to ascend stairs, or to stoop or to bend her knees, and compelling her to lose her employment and opportunity to earn wages, as was shown by the evidence, we are of the opinion that the court properly refused to grant a new trial on the ground that the damages was excessive. (Vail v. Broadway Railroad Co., 31 Abb. N. C. 56 ; S. C., 6 Misc. Rep. 20 ; Morris v. N. Y., O. & W. R. R. Co., 73 Hun, 560; Demond v. Brooklyn City R. R. Co., 8 Misc. Rep. 610; S. C., 60 N. Y. St. Repr. 824; Fox v. Brooklyn City R. R. Co., 7 Misc. Rep. 285 ; Wilson v. Broadway & 7th Ave. R. R. Co., 8 id. 450; Walsh v. Fitchburg R. R. Co., 78 Hun, 1; Stephens v. Hudson Valley Knitting Co., 48 N. Y. St. Repr. 814 ; Gale v. N. Y. C. & H. R. R. R. Co., 13 Hun, 1; Scott v. Sun Printing & Pub. Assn., 74 id. 284.)

The* judgment and order should be affirmed, with costs.

MaetiN and MerwiN, JJ., concurred.

Judgment and order affirmed, with costs.

       So in original.


author: HabdiN, P. J.:

text:
    Meyer Rubber Company, Appellant, v. The Lester Shoe Company and Another, Respondents.

      Metra allowance — the discretion of the trial court, not disturbed — Code of Civil Procedure, § 8253.
    The matter of an extra allowance in a difficult and .extraordinary case is so much within the discretion of the justice.who tried the cause that an appellate court will seldom interfere.
    Where such a motion was made upon affidavits, and also upon all the pleadings and proceedings had in the action, and the appeal hook does not contain all of them, the General Term will decline to interfere with an order which denies the successful party an extra allowance, hut provides that, in case a motion for a. new trial is made, or in case an appeal is taken hy the unsuccessful party, the motion may be renewed.
    Appeal by the plaintiff, the Meyer Rubber Company, from an ' order of the Supreme Court, made at the Madison Special Term and entered in the office of the clerk of the county of Broome on the 2d day of October, 1894, denying an extra allowance to the-plaintiff, but providing that, in case a motion for a new trial was made, or an appeal was taken by the defendants, the motion might be renewed.
    In the notice of motion it was stated that it would be made upon certain affidavits mentioned in the notice, “ and upon all of the pleadings and proceedings had and taken in this action.” In the order the affidavits mentioned in the notice are enumerated as having been read and used, and that the motion was made thereon, “and upon all the proceedings had and taken in this action; ” and the order, near its close, contained the following language: “ Ordered, that an extra allowance to the plaintiff herein be, and the same-hereby is, denied. In case motion for a new trial is made or appeal taken by defendants, then and in that case this motion may be> renewed.”

      T. B. <& L. If. Merchant, for the appellant.

      Garver, Deyo c& Jenkins, for the respondents.
   HabdiN, P. J.:

In Burke v. Candee (63 Barb. 552) it was held, viz.: An additional allowance “ is made by way of an indemnity to the party succeeding in the litigation.” That case was referred to with approval in Gooding v. Brown (21 Wkly. Dig. 46); Tolman v. Syracuse, B. & N. Y. R. R. Co. (31 Hun, 403); and Delcomyn v. Chamberlain (48 How. Pr. 413).

Section 3253 of the Code of Civil Procedure provides that in an action which is “ difficult and extraordinary ” where a defense-has been interposed, the court may, in its discretion, award to any party “ a sum not exceeding five per centum upon the sum recovered or claimed or the value of the subject-matter involved.” The affidavits- produced upon the motion tend to indicate that the case was difficult and extraordinary.

In Morrison v. Agate (9 Wkly. Dig. 286) it was said “that the determination of the question as to whether an action should be regarded as difficult and extraordinary, within the meaning of the Code of Procedure, involves so many considerations which are addressed to the discretion of the judge that the appellate court rarely interferes.” The doctrine of that case was approved by this court in Tolman v. Syracuse, B. & N. Y. R. R. Co. (31 Hun, 403). In the latter case an order had been made for an extra allowance, and the court observed, “ To reverse the order we should be obliged to say that the discretion of the trial judge was improperly exercised.” In the case in hand we are not inclined to say that the discretion of the S]iecia] Term was improperly exercised, as the appeal book does not contain “ all the proceedings had and taken in this action.” It may be that the order in question was based upon a knowledge possessed by the court of “ all the proceedings had and taken in this action,” and that such knowledge is not revealed fully to us by the appeal book. This feature of the case is rendered probable by the circumstances that the judge who presided at the Special Term presided at the Circuit where the issues of fact were tried, and the trial thereof was presided over by him during the whole of a week of the Circuit. We are not prepared to attribute to the judge the views imputed to him found in the affidavits in the appeal book. The circumstances of the trial may have induced him to insert in the order the clause : “ In case motion for a new trial is made or appeal taken by defendants then and in that case this motion may be renewed.” Inasmuch as no motion for a new trial has been made or appeal taken by the defendants the privilege given by the clause just quoted is unavailing to the plaintiff. Some force and effect may have been given to the affidavits read by the defendants relating to the intimations theretofore made by the court in respect to the nature and character of the action, which affidavits the plaintiff had no opportunity to answer at the time the motion was heard. Possibly upon other and further affidavits the plaintiffs may be able to obtain leave to renew the motion, and having done so, to secure a further determination by the Special Term of the question whether, under all the circumstances surrounding the question as to the propriety of an extra allowance, the discretion of tlie court should be exercised in favor of the plaintiff. \

Rule 44 of the general rules of practice of the Supreme Court provides that “ applications for an additional allowance can only be made-to the court before which the trial is had.” 'We think upon the pajjers before us we ought not to pass conclusively upon the question whether the plaintiff is entitled to an extra allowance, as that question cannot well be solved except upon a mature consideration of “ all the proceedings had and taken ” in the action and upon all the affidavits presented by either party relating thereto. We, therefore, affirm the order, without costs and without prejudice to the plaintiff’s application at Special Term for leave to renew its ¿notion.

Martin and Merwin, JJ., concurred.

Order affirmed, without costs and without prejudice to an application by the plaintiff for leave to renew its motion for an extra allowance.


author: Hardin, P. J.: Merwin, J.:

text:
    Fred E. Van Aernam, Appellant, v. Sophronia E. Granger, Respondent.

      Promissory note — transfer thereof for value before its maturity — presumption from its possession — declarations of an assignor not competent to prejudice his assignee.

    If a promissory note made payable to a certain person or bearer is transferred by the payee to another, for value, before it is due, such transferee thereby becomes the legal owner and holder thereof.
    Upon the trial of an action brought upon a promissory note, the production of the note by the plaintiff gives rise to the presumption that he is the owner thereof and that he acquired title to the same before it was due.
    The mere declarations of an assignor of a chose in action forming no part of the res gestee are not competent to prejudice the title of his assignee, whether the assignee be one for value or merely a trustee for creditors, and whether such declarations be antecedent or subsequent to the assignment.
    Appeal by the plaintiff, Ered E. Van Aernam, from a judgment of the County Court of Lewis county in favor of the defendant, entered in the office of the clerk of the county of Lewis on the 1st day of March, 1894, upon the verdict of a jury, rendered after a trial before the court and a jury, and klso from an order entered in said, clerk’s office on the 1st day of March, 1894, denying the plaintiff’s motion for a new trial made upon the minutes.
    This action was brought to recover upon two promissory notes made by the defendant to the order of Catherine J. Hess. The complaint alleged that the notes were, for value received, before maturity transferred and delivered to the plaintiff.
    The answer, first, denied each and every allegation of the complaint ; second, alleged payment in full; third, denied the ownership of the plaintiff, and alleged that said notes were the property of Catherine J. Hess and that the pretended ownership and possession of said notes by the plaintiff was not in good faith, but with the intention on the part of Catherine J. Hess and the plaintiff of avoiding a just set-off against the same, which was held by the defendant and set up a counterclaim alleging the execution of a note by Catherine J. Hess to one Sally J. Wormwood, and that Catherine J. Hess entered into an agreement with the defendant that if the defendant would obtain possession of said note, the same would be deemed a valid set-off against the notes given by the defendant to' Catherine J. Hess; and that the said Catherine J. Hess, in such event, would exchange with the defendant the notes mentioned in the complaint, which agreement was fully performed on the part of the defendant, and that the plaintiff at the time of the transfer to him of the notes in suit had knowledge of the agreement between the said Catherine J. Hess and the defendant.

      James D. Smith and G. S. Mereness, for the appellant.

      Merrell, Ryel (& Merrell, for the respondent.
   Hardin, P. J.:

I have carefully read the evidence found in the appeal book, and I am of the opinion that the weight of the evidence indicates that the two notes mentioned in the plaintiff’s complaint, bearing date April 4, 1891, payable to Catherine J. Hess, or bearer, were transferred by the payee to the plaintiff before due, for value, and that the plaintiff thereby became the lawful owner and holder of the ■notes. And I am also of the opinion that the evidence does not indicate that the defendant had a valid offset to the same, and that the verdict is against the weight of evidence.

(2) Upon the trial Corwin was allowed to testify to a conversation be had in November, 1891, with Catherine J. Hess with reference to the two notes in question, after objections thereto were overruled and exceptions taken. Mrs. Wormwood, the payee of the note of $100, was put upon the stand by the defendant and asked in respect to a conversation which she had had in September, 1891, with Mrs. Hess at her residence in regard to the $100 note. When she was asked to state that conversation an objection was raised by the plaintiff and overruled, and an exception taken, and the witness was permitted to give the statements and declarations of the former bolder of the notes in suit.

Granger, the husband of the defendant, was called as a witness in her behalf and testified that he held a conversation with Mrs. Hess in June, T891, with reference to the notes in suit, and when he was asked to state that conversation several objections thereto were taken and they were overruled and an exception was taken, and he was allowed to give the declarations of Mrs. Hess, the former owner of the notes in suit. The production of the notes by the plaintiff upon the trial gave rise to a presumption that he was owner thereof, and acquired title to the same before they were due. (Wilson v. Law, 7 N. Y. St. Repr. 672; Benson v. Gerlach, 20 id. 939.) That presumption is strengthened by the evidence given upon the trial, and the evidence offered by the defendant was insufficient to overcome the presumption and the proof of ownership given by the plaintiff during the progress of the trial. If it be correct to assume that the ownership of the notes was in the plaintiff from April, 1891, as the evidence strongly tends to indicate, the declarations received, to which allusion- has been made, were improper. (Paige v. Cagwin, 7 Hill, 381.)

In Vidvard v. Powers (34 Hun, 223), in an opinion of this court, it was said, viz.: In Truax v. Slater (86 N. Y. 630) the general doctrine is laid down by Judge Eakl, that the mere declarations of an assignor of a chose of action forming no part of the res gestee are not competent to prejudice the title of his assignee, whether the assignee be one for value or merely a trustee for creditors, and whether such declarations be antecedent or subsequent to the assignment.” The same quotation is made with approval near the close of the opinion in Bush v. Roberts (111 N. Y. 278).

The foregoing views lead to the conclusion that the verdict ought not to be sustained.

Martin, J., concurred.

Merwin, J.:

I concur on the ground that declarations of the former owner were improperly received in evidence.

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


author: Hardin, P. J.: Eorbes, J.:

text:
    William Youmans, Respondent, v. George H. Paine and Another, Appellants.

      Libel — all the pleadings considered with reference to the sufficiency of a, complaint not demurred to — words of innuendo, when necessary — presumption as to malice —justification— abuse of privilege — good faith of justification.

    Where no demurrer is interposed to a complaint all the pleadings may be examined to see whether a cause of action has been set forth in the complaint and as to whether auy indefinite allegation of the complaint has been supplied or admitted by the answer.
    The defendant in an action will not be allowed upon the trial thereof, or upon a motion for a neur trial, to deny an admission made in his answer.
    In an action brought to recover damages for the publication of a libel, words of innuendo are not now necessary, except in a case where the published words are harmless until coupled with the plaintiff, in some manner to'his injury.
    Where a publication is false and libelous, the presumptionfis that the publication was malicious.
    By pleading justification in their answer, the defendants preclude themselves from the defense that the publication was the act of their agent, particularly where the agent’s act was in the due course of his employment.
    Where the court holds a publication to be libelous, the disputed question as to whether there has been an abuse of privilege is one of fact for the jury.
    The jury has a right to determine, as a question of fact, whether a defense of justification of a publication set up in the answer was interposed in good faith.
    Appeal by tlie defendants, George IT. Paine and another, from a judgment of tlie Supreme Court in favor of tlie plaintiff, entered in tlie office of tbe cleric of the county of Delaware on the 8th day of September, 1893, upon tbe verdict of a jury, rendered after a trial at the Delaware Circuit, with a notice of an intention to bring up for review upon such appeal an order entered in said clerk’s office on the 29th day of October, 1894, denying defendants’ motion for a new trial. *
    The action was brought to recover damages resulting from the printing of certain “questions to be asked” of the witnesses in a judicial proceeding, at the request of C. IT. Bell, the attorney in the proceeding. The proceeding was taken to disbar the plaintiff, and was pending before a referee. Mr. Bell took the manuscript to the defendants’ foreman and asked him to print it, which he did. The defendants claimed that this was done without their knowledge. The defendants were editors and publishers of the Delaware Gazette.-

    The matter alleged as libelous was as follows:
    “ Questions to be Asked.
    “From the speech of people what is Mr. Youmans’ general character in the community in which he lives ? Good or bad ?
    “ What is his general character for truth and veracity ? Good or bad ?
    “ What is his general character in respect to bearing false witness ? Good or bad ?

      “ What is his general character in respect to insulting, traducing and vilifying people ? Good or bad ?
    “ What is his general character in respect to the promotion of virtuous actions, good principles and good conduct ? Good or bad ?
    “ What is his general character in respect to licentious, obscene and vulgar conversation ? Good or bad ?
    “ What is his general character in respect to his attacking and doing bodily harm to people ? Good or bad ?
    “ Whilst you have known him, what has his influence as a lawyer been on the people where he resides? Good or bad?

      O. W. Smith and E. D. Wagner, for the appellants.

      W. (& G. W. Yowncms, for the respondent.
   Hardin, P. J.:

Upon a former appeal from a nonsuit granted in this case, this court granted a reversal of the judgment then entered upon the non-suit, and ordered a new trial (69 Hun, 613). Upon the second trial a verdict was rendered for the plaintiff. Since the trial the learned judge wlio presided at the Circuit, upon hearing a motion made by the defendants for a new trial on the case and exceptions, delivered an elaborate opinion discussing the various questions arising in the case, and I am inclined to advise an affirmance upon the opinion so delivered by the trial judge. (See, also, Griebel v. Rochester Printing Company, 60 Hun, 319.)

Martin and Merwin, JJ. concurred.

Judgment and order affirmed, with costs, upon the opinion delivered by the trial judge.

The opinion of the trial judge was as follows :

Eorbes, J.:

This is an action to recover damages for libel.

The case was tried at the Delaware Circuit September 6, 1893, before a jury, and a verdict was rendered for the plaintiff for $1,000.

A motion was made for a new trial upon the minutes, and the . argument was heard upon a case and exceptions made upon an order and settled by the judge presiding at the Circuit.

There are two questions presented upon this motion :

The first is that the complaint does not state facts sufficient to constitute a cause of action.

The second, that there was no proof upon the trial, as shown by the record, that the defendants printed or published the alleged libel.

The libelous article is set out in the complaint in full. A motion was made at the opening of the trial, and also at the close of plaintiff’s case, to dismiss the complaint upon the ground that the complaint does not state facts sufficient to constitute a cause of action; and, assigning as a reason therefor, that there is no allegation in the complaint showing that the article published refers to the plaintiff in this action.'

The complaint was not demurred to, and for that reason, upon the trial, all of the pleadings may be looked into and examined for the purpose of seeing whether a cause of action has been set forth in the complaint, or whether any indefinite allegation of the complaint has been supplied or admitted by the answer. In other words, “ the joleadings are always before the court upon the trial and are particularly in evidence whether introduced in form or not.” (Holmes v. Jones, 121 N. Y. 461.)

In the case at bar the complaint fully sets forth, by a direct averment, that the article was printed and published by the defendants, of and concerning the plaintiff, and that this was done maliciously, for the-purpose and with the intent to injure the plaintiff.

The answer expressly admits the printing of the article by the defendants, but they deny that it was printed or published by them with malice or with an intent to injure the plaintiff.

The answer also sets forth in detail all of the facts and circumstances relied upon by the defendants to show a want of malice on their part, for the purpose of showing that the publication is privileged ; in effect, admitting that it was published of and concerning the plaintiff.

If it were any longer necessary, under section 535 of the Code of Civil Procedure, to plead by innuendo the application of the language used, the complaint and answer taken together leave no doubt as to the character of the issue framed. (Fairchild v. Lynch, 9 Wkly. Dig. 181.)

It was there held: When the facts upon which a defense rests appear in the complaint, it is not necessary that they should be pleaded in an answer in order to entitle the defendant to the benefit of them.”

A portion of section 535 of the Code of Civil Procedure reads as follows: “ It is not necessary in an action for libel or slander to state in the complaint any extrinsic fact for the purpose of showing the application to the plaintiff of the defamatory matter, but the plaintiff may state generally that it was published or spoken concerning him, and if that allegation is controverted, the plaintiff must establish it upon the trial.” (Palmer v. Bennett, 83 Hun, 220.)

This fact was not controverted, but was admitted b.y the answer. This is not a case in which it may be assumed that the words, if published by the defendants, are harmless.

The case of Hemmens v. Nelson (138 N. Y. 517) does not apply to the proposition made by the defendants’ counsel upon the motion made to dismiss the complaint.

An averment of the application of the words to the plaintiff needs words of innuendo only, when the words themselves are harmless and innocent until coupled with the plaintiff in some manner to his injury. In such a case the court still holds that innuendoes are necessary. (See 138 N. Y. 517, supra)

The second proposition submitted upon the argument is equally difficult to sustain in favor of the defendants.

The defendants, by their answer, practically, specifically admit the publication of the alleged libel, and in their answer, as a separate defense to the publication, reiteiute a portion of the libelous article, and justify its publication by them; and they cannot be heard upon this motion, nor could they have been heard upon the trial of the case, to deny the admission made by the answer. (Getty v. Town of Hamlin, 46 Hun, 1; Ferris v. Hard, 135 N. Y. 354.)

There was evidence upon the trial to show that Bell and both of the defendants, as well as the plaintiff, lived at the time of the publication of this article in the village of Delhi, and from the evidence upon the trial the jury had the right to infer that the defendants had knowledge of the unfriendly relations existing between Bell and the plaintiff.

Notwithstanding the fact of this knowledge, more or less made public by the proceeding to disbar Youmans, the defendants’ agent and foreman printed and placed in Bell’s possession the alleged libelous article, with full knowledge, at the time, that the printed slips were to be used by Bell for illegitimate purposes. He swears that he was told by Bell at the time they were printed that they were to be furnished to witnesses to be produced upon the trial before the referee. And while it may be said that Mr. Bell had the right to employ the defendants to print certain questions which he desired to use professionally upon the trial, it cannot be assumed that the spreading broadcast, among witnesses to be called, of questions of the character of those printed and published, is the circulation of privileged communications, or that conduct of that character, “horse-shedding the witnesses,” is either-professional or innocent.

The evidence shows that the defendants admitted, to the witness Youmans, knowledge of this publication.

It is claimed on the part of the plaintiff that at least one of the defendants had, for a long time prior to the publication of this article, been unfriendly to him, so that the manner of its publication and all of the facts concerning the printing and delivery to Bell, for the purpose for which the article was to be used, were all questions for the jury in determining how far the defendants had knowledge and were actuated by malice.

The presumption of law is that the publication, if false and libelous, was malicious. (Warner v. Press Pub. Co., 132 N. Y. 181.)

That presumption -was sought to be rebutted by the defendants upon the trial of the case by showing that they had no personal knowledge of the publication'; and, in fact, that whatever was done was done by their agent.

It must be assumed under the answer and from the fact of the justification therein, that they became liable for the act of their agent, and stood upon that justification as a defense. The agent was acting in the course of his employment. (Fogg v. Boston & Lowell R. R. Co., 148 Mass. 513; S. C., 12 Am. St. Rep. 583, and note.)

The case was fairly submitted to the jury in all of its bearings, as a question of fact. (132 N. Y. 181, supra.)

The court having held that the publication was libelous, the disputed question of fact as to whether there had been an abuse of privilege was one for the jury to determine. (132 N. Y. 181, supra.)

The jury also had the right to determine, as a question of fact, whether the justification of the article, by the answer, was set up in good faith. (Marx v. Press Pub. Co., 134 N. Y. 561.)

It is only in case where the defamatory article is shown to have been privileged, that the burden of. showing actual malice is cast upon the plaintiff. (Hemmens v. Nelson, 138 N. Y. 517, supra.)

It is true that the jury had the opportunity to say, under proper instructions by the court, upon the disputed evidence, that the communication was privileged; that, the article was published in good faith; and that the defendants were not actuated by malice. This they refused to find, and it cannot now be said that they disregarded the instructions of the court upon that subject, and found contrary to those instructions. (Sweetman v. Prince, 62 Barb. 256.)

The motion for a new trial must, therefore, be denied, with costs to abide the event of the action.


author: Mayham, P. J.:

text:
    The People of the State of New York, Respondent, v. William Smith, Appellant.

      Larceny — sufficiency of the complaint — witness seven yew's of age — Penal Code, §§ 538, 533 — Code of Criminal Procedure, § 393.
    A complaint upon which a warrant of arrest for the crime of petit larceny was issued stated in substance that one William Smith, at the town of Mohawk, in the county of Montgomery, on the 39th day of September, 1894, did feloniously, willfully and knowingly violate sections 538 and 533 of the Penal Code, in that at said time and place he did take from the money drawer of deponent’s store the sum of eight dollars in money, being lawful money of the United States of America.

      Held, that the complaint was sufficient;
    That the allegation that the money was taken from the money drawer of deponent’s store was equivalent to an allegation that the money was taken out of the complainant’s possession, and that as against a wrongdoer the complainant must be deemed to be the “true owner” of the money, within the language of section 538 of the Penal Code;
    That where the complaint was not upon information and belief the question of jurisdiction was not affected by the fact that it subsequently appeared that the deponent’s knowledge and information of the theft was derived from others;
    That under section 393 of the Code of Criminal Procedure it was within the discretion of a magistrate to receive the sworn evidence of a child but seven years of age.
    Appeal by the defendant, 'William Smith, from a judgment and order of the Court of Sessions of Montgomery county, entered in the clerk’s office of said county on the 3d day of December, 1894, affirming bis conviction, tbe judgment of conviction and sentence by á police justice of the town of Mohawk, for the crime of petit larceny.

      Glarh L. Jordcm, for the appellant.

      Leonard F. Fish, for the respondent.
   Mayham, P. J.:

The complaint upon which the warrant against the defendant issued was in writing and under oath and was as follows: “ That one "William Smith, at the town of Mohawk, in the county of Montgomery aforesaid, on the 29th day of September, 1894, did feloniously, wrongfully, unjustly, unlawfully, wickedly, willfully, corruptly, falsely, maliciously and knowingly violate sections- 528 and 532 of chapter 676 of the Lavra of the State of New York, passed July 26, 1881, entitled An act to establish a Penal Code,’ as amended 1882, 1883 and amendatory thereto, in that at the time and place aforesaid he did take from the money drawer of said deponent’s- store the sum of eight dollars in money, being lawful money of the United States of America, consisting of greenbacks or paper money, national or bank bills of the following denominations, to wit: One five-dollar bill, one two-dollar bill and two one-dollar bills.”

LTpon this complaint the magistrate issued his warrant on which the defendant was arrested and brought before him, and without the advice of counsel pleaded not guilty to the charge, whereupon the trial was adjourned until a future day, at which time the defendant appeared in person and by his attorney and objected in various ways to the form of the proceedings and to the jurisdiction of the magistrate, which objections were overruled.

The defendant then withdrew his plea of not guilty and asked and obtained permission of the court to cross-examine the complainant for the purpose of ascertaining whether or not the complaint was made on information and belief or on her own knowledge.

On the examination of the complainant by the defendant’s counsel, it appeared that she left the store, with the money alleged to have been taken in the money drawer, with two or three people in the store when she left, but that the defendant was not at that time in the store; that on her return she met the defendant going from the direction of the store, and that on going into the store she found that the money in question ivas not in the drawer.

That she did not see the defendant take the money, and all that she knew about it was what she was told by two persons in the store at the time.

On this proof the defendant’s counsel moved for the discharge of the prisoner on the ground that the complainant had no personal knowledge of the statements contained in the complaint. That motion was denied, and the defendant thereupon entered a plea of not guilty. The case was tried before a jury, and at the conclusion of the People’s evidence the defendant’s counsel moved for the discharge of the prisoner and that the court direct a verdict of not guilty on the following grounds :

First. “ That no crime has been established.”
Second. “ That no competent evidence has been produced showing that the defendant has committed any crime.”
Third. “ That the complaint nor the warrant nor the evidence does not show to whom the property claimed to have been stolen belonged.”
Tourth. “ That the ownership of the money in question is neither alleged or proven.”
Fifth. “ That the warrant of arrest in this case does not describe a crime, as required by law.”

The court denied the motion, and the case was submitted to the jury, who found the defendant guilty.

The appellant now insists that the complaint, warrant and proof are insufficient to charge him with the commission of the crime of larceny, and that it was error on the part of the magistrate to refuse to direct the jury to find the defendant not guilty. The first point urged here is that the complaint on which the warrant issued was. insufficient to give the justice jurisdiction, as the same was wholly on information and belief. An inspection of the complaint shows that the original information was positively stated and sworn to by the complainant and not on information and belief.

Clearly, that was in that respect sufficient to give the justice jurisdiction of the person and subject-matter, and authorized the issue of the process by him at the time of its issue by him.

Put it is insisted that by the cross-examination of the complainant after the warrant was issued, and while the defendant was in custody under it before the magistrate, it appeared that her only knowledge was information derived from others, except the fact that the money alleged to have been stolen was in the money drawer when she left the store and was not there on her return, and that she met the defendant on her return to the store going in a direction from the store.

¥e think the facts known to her and sworn to by her were sufficient to establish the wrongful taking of the money by some person not entitled to the same; and the information disclosed by her on the cross-examination is, we think, a sufficient disclosure of her source of information to justify her in making the complaint.

No constitutional or legal right of the defendant was violated in issuing the warrant on the complaint or information in this case, unless the omission to state the name of the true owner of the money alleged to have been stolen renders the information, warrant, proof and conviction erroneous.

The Penal Code (§ 528) defines larceny as follows :

“ A person who, with the intent to deprive or defraud the true owner of his property, or of the use and benefit thereof, or to appropriate the same to the use of the taker or of any other person, * * * steals such property, and is guilty of larceny.”

I think for the purposes of this prosecution the allegation of taking the money ouc of the drawer of the complainant’s store is equivalent to the charge of taking the money out of complainant’s possession, and that as against a wrongdoer she must be deemed, within the language of the section above quoted, the true owner.

It is also urged that this conviction should be reversed for the reason that it was upon the unsupported evidence of a child under twelve years old, in violation of the provisions of section 392 of the Code of Criminal Procedure. The only witness who testified to the fact of the taking of this money by the defendant was the seven-year-old son of the complainant.

He was after an examination by the magistrate, in the exercise of the discretion given to him by that section of the Criminal Code, permitted to be sworn, and testified that the defendant took money from this drawer. In such case' the judge or magis'trate is vested by tlxat section with a discretion to swear the child or to receive his unsworn statement. In the exercise of that discretion he administered the oath to the boy and took his sworn testimony. That was not error, being the proper exercise of a discretion, but upon 'that evidence alone the defendant could not be convicted. Was he corroborated, so as to make his evidence competent to be considered by the jury ?

We think he was. As to the question of the presence of the ■defendant, he is corroborated by the testimony of the clerk, who went while the defendant was there into the meat market, and also by the testimony of Norman and Orson Sweet. He was also corroborated upon the question of money being taken, by the complainant who missed the money immediately on her return to the store.

Upon all of this evidence a question of fact was presented, and the jury upon such evidence having found that the defendant was guilty, we see no reason for reversal of the judgment of conviction entered upon this verdict. '

Putnam and Herrick, JJ., concurred.

Conviction affirmed.


author: Herrick, J.:

text:
    Isaac Goldsmith, Appellant, v. The Wells Company (Limited), Respondent.

      .Failure to deny a defendant’s incorporation — plaintiff’sproof suppliedby defendant..

    Where an action is brought against a corporation, and the answer does not deny that the defendant is a corporation, the plaintiff need not prove the incorporation. Where the plaintiff fails to prove a necessary element of the defendant’s liability, but the defect is not pointed out upon a motion for a nonsuit, and wanting proof is subsequently supplied by the defendant’s testimony, the appellate court will not reverse on that ground a judgment for the plaintiff.
    Appeal by the plaintiff, Isaac Goldsmith, from a judgment of the Albany County Court, entered in the clerk’s office of said county •on the 20th day of November, 1894, reversing a judgment of the City Court of Albany in favor of the plaintiff, and also from an ■order entered in said clerk’s office on the 20th day of November, .1894, upon which order said judgment of reversal was entered.

      John JR. Langan and William JSJ. Gluts, for the appellant.

      JP. O. Dugan, for the respondent.
   Herrick, J.:

I think the judgment of the County Court should be reversed, and that of the City Court affirmed.

There was no denial on the part of the defendant that it was a. corporation, and, therefore, under section 1716 of the Code of Civil Procedure, it was not incumbent upon the plaintiff to prove the incorporation of the defendant.

At the close of the plaintiff’s case, the plaintiff had not proved by legal evidence that the person who employed him to act as an interpreter had authority from the defendant to do so, but that, weakness of the plaintiff’s case does not appear to have been pointed out on the motion for a nonsuit, and the defect was supplied by the-defendant’s evidence.

It appears therefrom that the person employing plaintiff was the general manager of the defendant, and from his testimony it is fairly to be inferred that he had charge of the litigation in question.

Under that employment, to act as interpreter, while the plaintiff did not actually interpret, he was kept several days at the court waiting for the case in which he was employed, to be tried.

He is entitled to compensation for such employment, and the findings of the court as to the terms of such employment, and the compensation therefor, are findings of fact having some evidence to sustain them, and such being the case, the court upon appeal will not disturb them.

Let the judgment of the County Court be reversed, and the judgment of the City Court be affirmed, with costs and disbursements of this appeal and in the County Court.

Putnam and Stover, JJ., concurred.

Judgment of the County Court reversed, and the judgment of' the City Court of Albany affirmed, with costs and disbursements in. this court and in the County Court.


author: Putnam, P. J.:

text:
    The First National Bank of Champlain, Appellant, v. Orville K. Wood and Others, Respondents.

      Assignment for benefit of creditors — formation of a corporation — prior fraudulent acts of the assignors — Laws of 1858, chap. 314; 1889, chap. 487.
    A firm, being financially embarrassed, organized a corporation in 1883, to ■which, it transferred the greater part of the partnership assets, and received in payment all the stock of the corporation, and became its sole stockholders, trustees and officers. On May 7, 1884, and when the firm and the individual members of it were contemplating the making of assignments for the benefit of creditors, the corporation, by its officers, mortgaged its real estate for §35,000 nominally, but in fact to secure advances of §7,000 to be made by the mortgagee to the corporation. On May 10, 1884, the firm made an assignment for the benefit of creditors to Hiram Clark, and two of the three partners made individual assignments to him. Subsequently a judgment creditor of the- assignors brought an action to set aside these assignments.

      Held, that the execution of the mortgage by the assignors as officers of the corporation, three days before their assignment, for money subsequently actually advanced to the corporation by the mortgagee, did not, per se, indicate an intent upon the part of the assignors to hinder, delay or defraud their firm creditors;
    That the formation of the corporation by the assignors when financially embarrassed, but two years before the assignments for the benefit of creditors were made, did not, in itself, afford any evidence of an intent to defraud the firm creditors, there being no evidence in the case showing a connection between these two acts;
    That if the formation of the corporation was an act in fraud of the firm creditors the assignee, Clark, could proceed under chapter 314 of the Laws of 1858, as amended by chapter 487 of the Laws of 1889, to set aside the fraudulent transfer;
    That prior fraudulent transfers made by an assignor do not necessarily avoid an assignment, but may be considered in determining whether there was any fraud in the assignment itself.
    Appeal by the plaintiff, The First National Bank of Champlain, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Clinton on the 23d day of April, 1S94, upon the report of a referee.
    The action was brought to set aside certain assignments in which Hiram Clark was named as assignee.

      Boyal Oorlvn,, for the appellant.

      George H. Beckwith, for the respondents.
   Putnam, P. J.:

This action was brought by plaintiff, as a judgment creditor, to set aside a general assignment executed on May 10, 1884, by O. K. Wood & Co., comjDosed of Orville K., Albert G. H. and Yictor A. Wood, and also individual assignments of Orville K. and Yictor A. Wood, executed at the same time.

On the trial it was shown that in the spring of 1882, the above-named firm of O. K. Wood & Oo., being financially embarrassed, its members organized a corporation called the “ Queen of the Harvest Manufacturing Company,” with a capital stock of 4,000 shares at twenty-five dollars each. On July 1, 1882, the said co-partners transferred to said corporation co-partnership assets to the amount of $127,000. Said firm or its members received and remained the owners of all the stock of said co-partnership, and when the general assignments were executed the co-partnership owned 1,288 shares of the stock and the members of the'firm owned the balance thereof. At the time of the transfer of the property of said O. K. Wood & Co., the firm was indebted in the sum of $115,000, and the property transferred to the corporation embraced all the co-partnership property except some real estate, worth very little, and accounts, mortgages and judgments nominally amounting to about $134,000, which were of uncertain value. The members o| the co-partnership were the sole stockholders, trustees and officers of said corjioration.

On the 7th of May, 1884, when the firm and its members were ■contemplating the several assignments sought to be set aside, said Orville K., Albert G. II. and Yictor A. Wood, as officers of the corporation, executed a mortgage on its real estate to one Williams for $25,000, and as stockholders thereof made the written consent to the execution of said mortgage required by statute. The mortgage recited an indebtedness of $25,000, but was, in fact, given for advances to be made to the corporation thereafter.

The learned counsel for the appellant insists that the mortgage executed three days before the assignments in question, and when the co-partnership and its members were contemplating the execution thereof, by which the above-named parties, the sole stockholders, trustees and officers of said corporation and the equitable owners of its property covered up its real estate with a mortgage for money to be advanced thereafter, was conclusive evidence of a fraudulent intent on the part of the firm and its members to deceive, hinder,, delay and defraud their creditors.. That the property of the corporation was, in a sense, the property of the partnership and co-partners, and the effect of the incumbrance was to hinder and delay the Creditors of the firm and its members from collecting their demands from the corporate stock, which represented the property of the corporation. That the intent of the stockholders, acting as officers of the corporation, in executing the said mortgage, was to use said mortgage to keep the control of said corporate property in their own hands and under cover of the incumbrance to use its real estate and prevent the application thereof to the payment of creditors.

We are unable, after a careful examination of the evidence, to see how the acts of the assignors as stockholders and officers of the Queen of the Harvest Manufacturing Company, in mortgaging its real estate when they were about to execute the assignments, indicated an intent on their part to hinder, delay and defraud the creditors.

The mortgage was only valid (if at all) for the amount that should be advanced by Williams to the corporation —• about $7,000. Although the corporation placed the incumbrance on its real estate, it received $7,000 from Williams, that being the amount for which the mortgage was a valid security. It was not satisfactorily shown that the corporation did not require the money or that the execution of the mortgage was not for its true interest. We are unable to see any indication of any attempt to defraud creditors in the execution of the mortgage. The assignors could not have contemplated that it would enable them to retain control over the corporate affairs or property, as after the execution of the assignments, by which they transferred to Clark their interest in the stock of the corporation, ceasing to be stockholders, they would naturally cease to act as officers of the corporation. It seems that there was some delay in the removal of the assignors as officers of the corporation, but it was a delay that could not have been anticipated.

Of course, it is possible to imagine that the assignors executed the mortgage with a view of covering up their property and that of the corporation, and as part of a scheme to hinder, delay, defraud and embarrass creditors. We do not think the evidence compelled the referee to come to that conclusion. Tie was not bound to presume fraud. Although the stockholders and officers of the corporation made the assignments which are assailed by the plaintiff, it does not necessarily follow that the corporation should cease to exist. The interest of the assignors therein was as stockholders. It was for their benefit that the corporation should continue. Their stock would probably be more valuable in an existing than in an extinct corporation. The evidence was such that the referee could well reach the conclusion that the mortgage was not executed with any fraudulent intent whatever, but honestly and with a view of promoting the interest of the corporation.

It is urged by appellant’s counsel that the firm of O. K. Wood & Co. and its members, in organizing the Queen of the Harvest Manufacturing Company in 1882,^ while financially embarrassed, and transferring to the corporation the greater part of their available assets, evinced a fraudulent intent. But the corporation was organized two years before the assignments. No connection was shown between the act of forming the corporation and the assignments. If the corporation was organized and the property of O. K. Wood & Co. transferred to it as a fraudulent scheme to defraud creditors of the firm, the assignee, Clark, could properly proceed under the provisions of chapter 314 of the Laws of. 1858, as amended by chapter 487 of the Laws of 1889, to set aside such fraudulent transfer. Under the evidence it did not appear that the action of the co-partners in organizing the corporation and transferring their assets to it two years before the execution of the assignments which are assailed, had any connection therewith ; and, hence, the prior fraudulent act of the co-partners, if any, did not vitiate the assignments.

For the same reason we are of the opinion that if the cancellation of the mortgage of W. W. Wood six weeks before the execution of the assignments in question, was a fraud on the creditors of the co-partnership, the referee was not on that account compelled to find fraud in the assignments. He found, on sufficient evidence, that the assignors did not contemplate making the assignments sought to be set aside in this action for more than a week before the execution thereof. It is true that he held in another finding that in March, 1884, the firm had begun making preparations for an assignment, but he does not find, nor did the evidence require him to do so, that they had at that time begun making preparations for the assignments in fact executed, or that the cancellation of the said mortgage was part of a fraudulent scheme consummated by the assignments sought to be set aside, or had any connection whatever therewith. It is held that prior fraudulent transfers by the assignor do not necessarily avoid an assignment, but may be considered in determining whether there was any fraud in the assignment itself. (Loos et al. v. Wilkinson, 110 N. Y. 195.)

Although the cancellation of the mortgage of W. W. Wood was in fact a fraud on creditors, if the assignments were otherwise valid the referee could properly sustain them, and the assignee named therein could attack the satisfaction of the mortgage under the provisions of chapter 314, Laws of 1858.

The point suggested by counsel for appellant as to the preferred notes of the wives of the assignors does not require a discussion, since the opinion of the Court of Appeals in this case reversing the judgment first entered herein. (128 N. Y. 35.)

Other objections are made by plaintiff to the validity of the assignments which we do not deem it necessary to discuss. We think, on the questions of fact raised by such objections, the conclusions of the referee were sustained by the evidence. We are also of the opinion that none of the exceptions to the rulings of the referee on the trial requires us to award a new trial.

The judgment should be affirmed, with costs.

Herrick and Stover, JJ., concurred.

Judgment affirmed, with costs.


text:
    Lucinda J. Wiley, Appellant, v. The Village of Rouse’s Point, Respondent.

      Pleading — demurrer to a separate defense — what is admitted thereby — hypothetical defense — remedy.

    Where the plaintiff demurs to a separate defense in an answer the court can only consider the complaint, the defense demurred to and the demurrer, and although the answer may, in other parts, contain denials of allegations of the complaint, if there he no such denials in the separate defense demurred to, the allegations of the complaint must, upon the hearing of the demurrer, he taken as admitted.

      The plaintiff brought an action against a municipal corporation to recover damages for injuries sustained, as alleged, from the improper condition of a street and sidewalk. The defendant answered and denied, first, all the allegations of the complaint, except certain formal allegations of the defendant’s incorporation, its duty to care for the streets, and that her claim for injuries had been presented to the village and had not been paid. The answer proceeded as follows: “ Second, the defendant, for a further answer and defense, alleges that if the plaintiff fell upon the streets or sidewalks of the village of House’s Point at the time mentioned in said complaint, and suffered any injury or damage thereby, the same was caused solely by the contributory negligence of plaintiff.” The plaintiff demurred to this second defense.

      Held, that the demurrer was properly overruled;
    That if the plaintiff deemed the second defense hypothetical, the remedy was by motion;
    That as the answer set up the defense of the plaintiff’s contributory negligence, it could not be demurrable;
    That while the defendant might, under a general denial, have proved the contributory negligence of the plaintiff, it was not improper to interpose this defense separately.
    Appeal by tbe plaintiff, Lucinda J. Wiley, from an interlocutory judgment of tbe Supreme Court in favor of the defendant, entered in the office of the clerk of tbe county of Clinton on tbe lltb day of October, 1894, overruling a demurrer to the second paragraph of the answer, with notice of an intention to bring up for review upon such appeal an order made on tbe lltb day of September, 1894, upon which order tbe interlocutory judgment was entered.
    The action was brought by the plaintiff to recover for injuries sustained by her, as alleged, from the improper and unsafe condition of a street and sidewalk in the village of Rouse’s Point. The complaint, among other things, alleged tbe incorporation of the village, and that it was its duty to keep the streets and sidewalks in a a safe and proper condition. It then stated the cause of action and its incidents, and tbe defendant’s negligence. It further alleged that tbe plaintiff’s claim for injuries had been presented to the defendant, according to tbe statute, and that it had not been paid.
    The defendant’s answer denied, first, all the allegations of the complaint, except those which referred to its incorporation, to its duty to care for tbe streets and sidewalks, and to the due presentation of the plaintiff’s claim and its non-payment.
    The answer continued as follows;
    “ Second. The defendant, for a further answer and defense, alleges that if the plaintiff fell upon the streets or sidewalks of the village of Rouse’s Point at the time mentioned in said complaint, and suffered any injury or damage thereby, the same was caused solely by the contributory negligence of plaintiff.” Then followed the demand that the complaint be dismissed, with costs.
    The plaintiff demurred to this second defense, the demurrer was overruled at Special Term, and the plaintiff appealed.
    TP". H. Dunn, for the appellant.

      Egbert O. Everest and L. L. Sheddon, for the respondent.
   Putnam, P. J.:

On ’ a demurrer to a separate answer the court has before it and can only consider the complaint, the answer demurred to and the demurrer. Hence, although parts of the answer may contain denials, if there is none in the separate answer to which the demurrer is interposed in the consideration of the case, the allegations of the complaint must be deemed admitted. (Douglass v. Phenix Ins. Co., 138 N. Y. 209-215; Valentine v. Lunt, 51 Hun, 544-547; Boyd v. McDonald, 35 N. Y. St. Repr. 484; Hammond v. Earle, 58 How. Pr. 426.)

In this case the second paragraph of defendant’s answer, to which the demurrer was interposed, contained no denial of the allegations of the complaint or either of them, except that the averment in such answer that the injury to the plaintiff, if any, was caused by her contributory negligence may be regarded as a denial of the allegation in the complaint that the accident occurred without any fault, negligence or carelessness on her part. The answer admits the plaintiff’s fall on the street or sidewalk of the village of Rouse’s Point, and the suffering, injury and damage resulting therefrom, because it does not deny the allegations of the complaint in that regard. It admits all the allegations of the complaint except as to contributory negligence.

We think, therefore, that the answer is not subject to the objection suggested by the appellant. The allegation therein, that “ if the plaintiff fell,” etc., does not deny, and hence admits the averments in the complaint. Therefore, plaintiff is mistaken in stating that she is unable to ascertain from defendant’s answer what facts in her complaint are controverted. All the facts stated in the complaint are clearly admitted except the fact of the absence of contributory negligence. The defendant, not denying that plaintiff fell on one of the streets of Rouse’s Point and was injured, as alleged in the complaint, could, we think, properly use in his pleading the language to which plaintiff objects, that “ if the plaintiff fell,” etc., such fall was caused by her contributory negligence. (Taylor v. Richards et al., 9 Bosw. 679; Ketcham v. Zerega, 1 E. D. Smith, 553.)

It is not apparent how plaintiff is in any manner injured by such an averment in the answer. If the allegation, however, should be deemed hypothetical and improper, the remedy of plaintiff was by motion and not by demurrer. The pleading alleged a defense — the contributory negligence of plaintiff — and hence a demurrer thereto could not be sustained.

The learned counsel for the appellant suggests that if the defendant had been content to have alleged (upon information and belief, or otherwise) that the negligence of plaintiff contributed to cause her injuries, then its answer would have been clear and concise, enabled all parties to have known what was really in issue in the case, and would not have been subject to the criticism of being hypothetical and uncertain.” In fact, defendant has alleged in the answer in question just what the counsel thinks she should have alleged. By not denying — it is admitted that plaintiff was injui’ed as alleged in the complaint, and it is plainly averred that such injury was caused by her contributory negligence.

The answer in question was not necessarily interposed by the defendant. It was a proper and necessary allegation in the complaint that the injury to plaintiff was not caused by her negligence. On the trial plaintiff, as a part -of her cause of action, will be compelled to show the absence of contributory negligence. Hence, a general denial in the answer of defendant would have enabled it to show contributory negligence on the part of plaintiff, and it was not necessary for it to allege that factj by way of affirmative defense. But, although not compelled to do so, we think the defendant could properly, as a separate answer, allege such contributory negligence on tlie part of tlie plaintiff, although such defense could be proved under a general denial contained in other parts of the answer.

The judgment should be affirmed, with costs.

Herrick and Stover, JJ., concurred.

Judgment affirmed, with costs.


author: Putnam, J.:

text:
    Ledyard P. Hale, as Receiver of The St. Lawrence Manufacturing Company, Appellant, v. Marcus P. Mason, Respondent.
    . Receiver of a corporation — filing security for costs — laches.

    Where a receiver brings an action ho -will not be required to file security for costs merely because the corporation is insolvent, or because he has no funds in his hands. It is necessary, in addition to the fact of insolvency, to show that the action was brought heedlessly or in bad faith, or that it is improbable that the plaintiff will succeed.
    The rule is the same where a receiver of a corporation is about to bring to trial an action which was begun by the corporation some time before his appointment, in which he has been substituted as plaintiff on the application of the defendant. Where such a motion to make a receiver give security is delayed for sixteen months after his appointment, and until after service of notice of the trial of the action, it should be denied because of the delay in moving.
    Appeal by tlie plaintiff, Ledyard P. Hale, as receiver of tlie St. Lawrence Manufacturing Company, from an order of tlie Supreme Court, entered in tlie office of tlie clerk of tlie county of St. Lawrence prior to tlie 18tli day'of September, 1804,- requiring liirn to file security for costs in this action in the sum of $3,000.

      Bussell, Poste & Percy, and John G. Keeler, for the appellant.

      A. K. Kilby, for the respondent.
   Putnam, J.:

. Assuming that the court below had power to grant the order from which the appeal is taken, we think, under the circumstauces of the case, such power should not have been exercised.

The plaintiff was appointed receiver of the St. Lawrence Manufacturing Company, in proceedings to dissolve the corporation on the application of the People through tlie Attorney-General. He did not commence this action, but found it pending. It was commenced by the corporation long before his appointment. It did not appear that he was proceeding with the action in bad faith, or had been guilty of any mismanagement. He was about to bring the case to trial in the name of the original parties, as he lawfully might (Phœnix Warehousing Co. v. Badger, 67 N. Y. 294), when, on motion of defendant, he was substituted as a party plaintiff, and afterwards the order from which the appeal is taken was made requiring him to file security for costs. The sole ground on which the order was granted appears to have, been that the corporation at the time of his appointment was insolvent, and that, as receiver, he had no funds in his hands with which to pay the costs of the action.

We think that fact did not justify an order requiring plaintiff to file security for costs in the absence of any evidence of bad faith or mismanagement, especially in an action like this, commenced by the corporation and merely continued by a receiver appointed oh the application of the Attorney-General of the State. (See Jenkins, Receiver, v. Stow, 2 N. Y. Monthly Law Bul. 57; Kimberly v. Goodrich, 22 How. Pr. 424; Darby, Adm., v. Condit, 1 Duer, 599; Shepherd, Assignee, v. Burt, 3 id. 645 ; Ryan v. Potter, 4 N. Y. Civ. Proc. Rep. 80 ; Wassinger v. Fennell, 13 id. 286; Bennett v. Goble, 43 Hun, 354; Rutherford v. Town of Madrid, 77 id. 545.)

The above authorities hold that in an action brought by a trustee, receiver, administrator, or other party, the plaintiff will not be compelled to file security for costs merely on the ground of insolvency, or that he has no funds in his hands; that it is necessary, in addition to the fact of insolvency, to show that the action was brought in bad faith or heedlessly, or that the plaintiff will not probably succeed. Certainly such proof should be required in a case like this where the action was commenced by the corporation long prior to the appointment of the receiver, and is merely continued by him.

We are also of the opinion that the motion of defendant should not have been granted on account of the delay in moving. The receiver was appointed in January, 1893, and the motion to compel him to file security for costs was not made until May, 1894, sixteen months after his apj>ointment, and after plaintiff had served a notice of trial on defendant. (See Robinson v. Sinclair, 1 Den. 628; Doyle v. Curley, 2 N. Y. Monthly Law Bul. 48.)

The order should be reversed, with costs and disbursements to the appellant, and the motion denied, with costs.

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

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


text:
    Richard B. Rock, Respondent, v. James D. White and Others, Appellants.

      Admission of improper evidence — error cured by striking it out.

    An error in the admission of evidence, upon,the trial of an action, may be cured where the testimony is stricken out before the case is submitted to the jury.
    Appeal by the defendants, James D. White and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 16th day of May, 1894, upon the verdict of a jury rendered after a trial at the Albany Circuit, with notice of an intention to bring up for review, upon such appeal, an order entered in said clerk’s office on the 15th day of May, 1894, denying the defendants’ motion for a new trial made upon the minutes.

      Winfield 8. ITevenor, for the appellants.

      Robert G-. Soberer, for the respondent.
   Putnam, P. J.:

The questions raised by the pleadings in this case as to whether plaintiff was prevented by unfavorable' weather from filling the ice house of defendants, or whether he was slow and negligent in the performance of the contract between the parties, was fairly submitted to the jury by the learned trial court.

On the questions of fact, thus submitted, there was conflicting evidence, and the verdict of the jury cannot be properly disturbed.

The error, if any, in admitting in evidence the resolution of the common council of the city of Albany was cured by the striking out of such evidence on the motion of the defendants. (Pettee v. Pettee, 77 Hun, 595.)

If the refusal of the trial court to charge that if 1,100 tons of the ice placed in plaintiff’s'ice house came from the district specified in the contract plaintiff was bound, unless prevented by defendants, to place the same in defendants’ ice house, as requested, was an error ; such error was subsequently cured by the court’s substantially charging as thus requested. Besides there was evidence tending to show that plaintiff liad harvested large quantities of ice outside of the district described in the contract and placed the same in defendants’ ice house, defendants consenting. If the amount so harvested was equal to the amount taken from the district specified in the contract and placed in plaintiff’s ice house defendants were not injured.

We have examined the various other exceptions to the rulings of the learned trial judge in the reception of evidence and to his charge or refusals to charge, and are of opinion that none of said exceptions requires discussion or necessitate a reversal of the judgment.

Herrick and Stover, JJ., concurred.

Judgment affirmed with costs.


text:
    Catharine E. Pawling, as Administratrix, etc., of Henry Haskell Pawling, Deceased, and Others, Respondents, v. William M. Pawling and Another, Appellants, Impleaded with Another.

      Vendor and, purchaser ■ — oral agreement to convey land ■ — effect of payment and possession — specific performance.

    It is a general rule that mere payment of the purchase money is not sufficient to authorize a judgment requiring- the specific performance of a verbal agreement for the sale of lands, except in a case where an action at law to recover the amount paid would not, under the circumstances, give the purchaser an adequate remedy. But where the purchase money has been paid and possession under the contract has also been taken the contract will be specifically enforced, and to take a case out of this rule the circumstances must be exceptional.
    A son was in possession of certain premises before and at the time he made a verbal contract with his father for their sale, but it did not appear in what manner he came into possession. Subsequently he paid the purchase price and remained in possession for three years before his father’s death, after which the son brought an action for the specific performance of the contract.

      field, that the possession of the son would be deemed to have been under the verbal contract, and that the court should enforce the specific performance of it.

      Appeal by the defendants, William M. Pawling and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Montgomery on the 12th day of November, 1894, upon the decision of the court rendered after a trial at the Montgomery Circuit before the court without a .i™7-
    The action was originally brought by Henry Haskell Pawling, and he having died, it was continued by his administratrix and his heirs.

      Ed/wcwrd P. White, for appellant Mary Jane Herrick.

      W. Davidson Jones, for appellant William M. Pawling.

      Z. 8. WestbrooTc, for the respondents.
   Putnam, P. J.:

Henry Pawling, father of the original plaintiff, Henry Haskell Pawling, and the defendants, William M. Pawling and Mary Jane Herrick, died in 1892, leaving said parties liis only heirs and the defendant Margaret Pawling, his widow, and owning the lot of land described in the complaint. In 1874 Henry Pawling and Henry Haskell Pawling entered into a partnership, and the former conveyed to the latter an undivided half of the ¡premises in question. In 1877 the firm borrowed from one Stairs $2,600, which it used in its business. For this loan Henry Pawling and Henry Haskell Pawling executed their joint and several bond secured by a mortgage on the property. In 1882 the partnership was dissolved and Henry Haskell Pawling reconveyed to his father the undivided one-half of said premises. In December, 1889, Stairs demanded payment of said bond and mortgage of Henry Pawling, who said he would furnish the money, and then made the proposition to Henry Haskell that if the latter would pay. off said bond and mortgage to Stairs, the said Henry Pawling would give him a deed of the property in question. Henry Haskell at first objected, but afterwards accepted said proposition, and -in pursuance of the verbal contract paid said bond and mortgage and obtained a satisfaction thereof. The amount paid was $2,865.63. Afterwards, and about June 1, 1892, Henry Pawling, being in poor health and intending to carry out said agreement, requested Henry Haskell to have a proper deed drawn to convey said premises in pursuance of said verbal contract and promised to execute the same. Said Henry Haskell thereupon procured a deed to be drawn and presented the same to Henry Pawling for execution. Said deed was read to and approved by HenryPawling and he promised to execute the same, but soon afterwards, and before he had performed his promise, died. The learned trial court, on sufficient evidence, found the facts substantially as above stated and also found as follows: “And the plaintiff has, for the use and purposes of Ms said mill and business, ever since his said agreement with said decedent in December, 1889, and for some time prior thereto, taken and used the water from said' dam and maintained a pipe for his said purposes extending from his said mill and premises into said dam above, and drawing and conducting the water therefrom and supplying his said mill therewith, with the knowledge arid assent of said decedent until the time of his said death, and still uses the same for such purposes, and ever since said agreement was made in December, 1889, the plaintiff has also used and occupied a portion of the said old mill building as a carpenter shop and a portion thereof for storage purposes in connection with his said mill and manufacturing business adjoining on the west thereof, and with the knowledge and assent of said decedent to the time of his said death, and still uses and occupies the same for such purposes.” '

The subject of the specific performance of oral contracts for the conveyance of land, void by the Statute of Frauds, has been extensively discussed by elementary writers and by courts in many cases. It is well settled that equity will, to prevent injustice, enforce the performance of a parol contract partly carried into execution, on the ground that, otherwise, one party would be enabled to practice a fraud on another, and that it could not be the intent of the statute to enable one party to commit such a fraud with impunity. (Story’s Eq. Juris. § 759; Dygert v. Remerschnider, 32 N. Y. 629-642.)

A parol contract for the sale of land where the vendee has paid the whole purchase price and entered into possession under the contract may be specifically enforced. (Pom. Spec. Perf. § 115.)

In Dunckel v. Dunckel (141 N. Y. 427, 435) Earl, J., remarks: “We think it is a general rule to be gathered from the authorities that mere payment of the purchase price of land is not sufficient to .•authorize the specific performance of the contract of sale unless the peculiar circumstances of the case be such that an action at law to recover back the mpney paid would not give the purchaser an adequate remedy. But it is also a general rule that when the consideration has been paid and possession under the- contract of sale has been taken, the contract 'will he • specifically enforced, and to take the case out of this rule the cvrctomsta/nces must he peculiar and ■exceptional.” A multitude of cases might be cited holding the same doctrine. (Malins v. Brown, 4 N. Y. 403, 410; Dugan v. Gittings, 3 Gill, 138, 139; Gregory v. Mighell, 18 Vesey’s Ch. 328; Fitzsimmons v. Allen’s Adm., 39 Ill. 440; Shirley v. Spencer, 9 id. 583; Bigelow v. Armes, 108 U. S. 10; Fannin v. McMullen, 2 Abb. Pr. [N. S.] 224.)

There are some authorities holding that the mere payment of the whole purchase price by the vendee and full performance by him of the verbal contract will entitle him to a specific performance. (Willard’s Eq. Juris. 284; Morrill v. Cooper, 65 Barb. 512, 517.)

In this case there is no" serious dispute as to the facts. The ■deceased, Henry Pawling, in December, 1889, was the owner of the premises described in the complaint, which were subject to the mortgage held by Stairs, on which was du'e $2,865".63. Stairs ■demanded the money on the mortgage. Deceased, being unable to pay him, then made a verbal contract with his son, the original plaintiff, Henry Haskell Pawling, by which, if the latter would pay up the mortgage, he would convey the premises in question to him. Henry Haskell accepted the proposition, paid up the mortgage and procured a satisfaction thereof, and remained in occupation of the premises from that time until the death of Henry, in 1892. Shortly prior to this event Henry Haskell, at the request of Ilenry, prepared a deed for the latter to execute, which he was prevented from doing by his death. I do not regard it as of much consequence whether Henry was legally bound to pay the whole mortgage or only one-half of it. The evidence indicates an understanding between the parties that it was for Henry to pay off the whole mortgage. But whether so or not, he was liable for his proportion of the mortgage debt, and it was clearly shown that he agreed with Henry Haskell that if the latter would satisfy the mortgage he, Henry, would convey the premises in question to him. Henry Haskell did pay up the mortgage and remained in possession of the-premises, and according to the terms of the verbal contract was-entitled to a conveyance thereof.

I think that the parol contract entered into between the father and son in 1889, and which the former was about to carry out at the time of his death, should be enforced by this court. It would be most unjust, and a virtual fraud, if the defendants, the heirs of Henry Pawling, after the acts of part performance done by the plaintiffs intestate, could be allowed to interpose successfully the Statute of Frauds as a bar to plaintiff’s rights. There has been such a part performance of the original oral contract by Henry Haskell as enables this court to decree a specific performance. There has. been a payment of the full purchase price and possession of the. premises under the oral contract for- a period of three years. (See Pom. Eq. Juris. § 409, and note, and cases above cited.)

It is suggested by the learned counsel for the appellants that although Henry Haskell remained in possession of the premises in question from the time of the making of the oral contract to the time of the death of Henry Pawling, such possession was not under or referable to the oral contract, as he was also in occupancy of the-premises at the time and prior to the making thereof.

It is true that Henry Haskell was in possession of the premises-in question before and at the time of the making of the oral contract. It is not shown how, whether by license from deceased or as-a tenant. I think, however, that on the making of the oral contract and the payment of the purchase price according to its terms, and when Henry Haskell was entitled to a deed of the premises by the terms of said contract and to the possession thereof thereunder (Miller v. Ball, 64 N. Y. 286), that his possession should be deemed as under the contract.

It is held in reference to a tenant, that his possession after the expiration of his term, and a payment of an increased rent, are together a part performance of a verbal contract for a renewal of the lease. So possession after the term and a payment shown which could not be referred to the old rent, but could only be explained on the supposition of a contract, should be part performance of a-verbal contract for the lessor to sell and convey the land. (Pomeroy on Specif. Perf. § 124.)

Henry Haskell was in possession before lie made a verbal contract to buy the land. In pursuance of the verbal contract he afterwards paid the purchase price and remained in possession, to which he was legally entitled under the contract. His possession thereafter should be deemed thereunder. In Dunckel v. Dunckel (56 Hun, 28; 141 N. Y. 430) the plaintiff at the time of making the contract for a life lease sought to be enforced in that action was in possession of the premises, and the General Term in reversing the judgment first rendered in the action adverted to the fact as follows : The plaintiff was at the time in possession and actual occupancy of ’ the premises in question; had no occasion to move or make any change in her business or condition in consequence of the agreement. She simply continued to occupy the same as she had done while her husband was living.” Put the Court of Appeals in effect held (141 N. Y. 430) that although the plaintiff was in possession of .the house and lot affected by the action when the verbal contract was entered into — after the making thereof her possession was referable to and unde)’ such contract.

In this case, as in the one cited, there was a possession of three years by Henry Haskell prior to the death of his father, and after full performance by him of the contract. As we have seen, on the full performance by Henry Haskell, lie was entitled to the possession of the premises thereunder, and it seems proper that his actual possession should be deemed taken, rather under the contract, as he lawfully could, than in any other way. (See Spear v. Orendorf, 26 Md. 37, 44; Wills v. Stradling, 3 Vesey’s Ch. 377.)

We conclude, therefore, that the learned trial justice properly disposed of this case, and that the judgment should be affirmed, with costs.

Herrick, J., concurred; Stover, J., not acting.

Judgment affirmed, with costs.