text:
    ALEXANDER McCUE, Respondent, v. THE TRIBUNE ASSOCIATION and JOHN DOE, Appellants.

      Practice—Ex parte examination of witness before referee — right of adverse pai'ty to •object to—Appearance of witness — when waiver ofolyection to regularity of papers.

    A party cannot interfere to prevent the procuring of an ex pa/rte affidavit by his adversary. Objection to the contents of the affidavit, or to the mode of procuring it, must be made when the affidavit is sought to be used. The witness having appeared, and having submitted' to the examination without objection. held, that it was afterward too late for him to initiate proceedings to set aside the order, on the ground of the insufficiency of the affidavit on which it was granted.
    Appeal from an order, denying a motion to vacate and set aside a prior order, appointing a referee to take the affidavit or deposition of William F. Gr. Shanks, and also directing the said Shanks to appear before said referee and make such affidavit or deposition.
    This was an action of libel brought against the defendants, to recover damages for an article published in the New York Tribune.
    The plaintiff, being informed that Shanks knew who was the author of the article complained of) with a view to discover the real name of the writer, and to make a motion to amend his papers by substituting such name for John Doe, obtained an order appointing a referee to take the affidavit of Shanks, to be used on the motion to amend, Shanks having previously refused to make an affidavit voluntarily.
    The witness appeared before the referee and submitted to the examination, but refused to answer certain questions. Subsequently, the defendant and Shanks moved to vacate the order of reference, which motion was denied, and this appeal was taken.

      Cornelius A. Runhle, for the defendant.

      A. J. Dittenhoefer, for William F. Gr. Shanks.
    The plaintiff cannot compel the discovery of the name of a person, against whom he proposes to bring a suit for libel. (Opdyke v. Marble, 44 Barb., 64; 2 Story’s Eq. Jur., § 1494.) The motion is, in effect, a discovery. No fact in controversy between the parties is sought. The plaintiff seeks to find out whom to sue.

      Tracey, Catlin & Brodhead, for the plaintiff.
    Section 401 of the Code is appropriate. The order was ex parte. (Erie Railway v. Champlain, 35 How., 74; Erie Railway v. Gould, 14 Abb., N. S., 280; Brooks v. Schultz, 5 Robt., 657.) An ex parte order is not appealable. (Savage v. Relyea, 3 How., 276; Lindsay v. Sherman, 5 How., 308.) The defendant cannot object, until the affidavit is offered. (Brooks v. Schultz, 5 Robt., 659.) The witness has appeared and been examined, and he cannot now appeal. (Erie Railway v. Champlain, 35 How., 74; Claflin v. Farmers’ Bank, 25 N. Y., 293.
   Taloott, J.:

The motion to vacate the order, appears to have been made by the Tribune Association, as a defendant, and by the witness Shanks. The Tribune Association had no right to move to vacate the order for an ex parte examination of the plaintiff’s witness. There is no mode by which a party can interfere to prevent the procuring of an ex parte affidavit by his adversary. The witness might voluntarily appear before the referee and make the affidavit, and, if so, he might waive any irregularity or want of power in the proceedings to procure his attendance.

The affidavit is ex parte, and may or may not be used in the case. If there is anything in the contents, or in the mode of procuring the'affidavit, to which the defendant can lawfully object, his objection must be made when the affidavit is sought to be used against him.

The witness Shanks also moved to vacate the order, and he appeals from the decision of the Special Term. It appeared, on the motion, that Mr. Shanks appeared before the referee, attended by counsel, at the time and place named in the subpoena served upon him, and then and there, without any objection to the validity or regularity of the subpoena, or the order under which it was issued, submitted to examination, which had been closed before any notice of any motion to vacate the order appointing the referee was given. We think it was too late for the witness, after having voluntarily appeared and submitted to examination, to take exception to the proceedings to procure his attendance for that purpose. The only interference with any right of the witness, which was attempted by the order which he moved to vacate, was in that portion of the order which directed him to appear for the purpose of the examination. Any objection to the order, on this account, was waived by his voluntary appearance, without objection. This precise point appears to have been decided in the case of The Erie Railway v. Champlain, where it was held that, after the witness had appeared before a referee appointed under section 401, and submitted to a partial examination, it was too late to move to vacate the order appointing the referee, on the ground that the affidavit on which the order was made, did not present a case authorizing the granting of the order. This, though a Special Term decision, was, we think, in conformity to the rule in similar cases. There is no point, as to the propriety of any questions put to the witness, before us, and we intend to decide nothing on that subject, only the proposition, that, after a witness has appeared and submitted to an examination, without objection, before a referee appointed for that purpose, it is too late for him to initiate proceedings for the purpose of setting aside the order, on the ground of the insufficiency of the affidavit on which it was granted. The order appealed from is affirmed, with ten dollars costs.

Present — Barnard, P. J., Tarpen and Talcott, JJ.

Order affirmed, with ten dollars costs.

       Brooks v. Schultz, 5 Rob., 656.

       35 How., 74.


source: Caselaw Access Project

author: BapuNAed, J.:

license: Public Domain

text:
    HERVEY ROCKWELL, Respondent, v. ALFRED LAWRENCE, Appellant.

      Evidence—Admissibility of award to prove ownership of goods, in an action to recover the price of them.

    The defendant having bought certain hay of one Seymour, title to the same was claimed by plaintiff. The claims of plaintiff and Seymour were submitted to arbitration, and the title to the hay was awarded to plaintiff. Held,, that the award was properly admitted in evidence, to establish title in the plaintiff, in an action brought by him against the defendant to recover the price of the hay.

      Appeal from a judgment in favor of the plaintiff, entered on the report of a referee.
    This action was brought to recover the price of certain hay, sold to the defendant by one Seymour, who worked plaintiff’s farm under an agreement, by which he was to have a certain share of the products. Title to the hay sold, was claimed by the plaintiff, and the claims of Seymour and plaintiff were submitted to arbitration. The arbitrators determined that plaintiff was the owner, and notice of the award was given to the defendant. The action was referred to a referee, who reported in favor of the plaintiff. Judgment was entered upon the report, and the defendant appealed from the same.

      Mwndy da Stout, for the respondent.

      WilUam F. Purd/y, for the appellant,
   BapuNAed, J.:

The plaintiff and one Seymour made an agreement, by which Seymour agreed to work plaintiff’s farm for one year from ,1st April, 1865. Seymour was to have one-third of the products for his labor, and was to have one-third of the hay which should' be left in the spring of 1866, after leaving as much, and as good hay, as he received from plaintiff at the commencement of the lease. Just before the termination of the year, in March, 1866, Seymour sold the hay to defendant. Plaintiff claimed the hay. Upon this state of facts, plaintiff and Seymour agreed to submit the question to two arbitrators; and these arbitrators determined that Seymour had had all he was entitled to, under the lease or agreement, and that plaintiff was entitled to collect the proceeds of sales, made by Seymour. The defendant was notified of this award. Upon the trial, the plaintiff offered in evidence, the award as between plaintiff and Seymour. The defendant objected to this award, as not binding him. The evidence was received; and this presents the only question raised on this appeal. I think the evidence was admissible. The plaintiff had proven his title to the hay. It was raised on his farm. Seymour was to have one-third of what remained, after- making good the old hay of the preceding year. If he had produced a bill of sale of the hay from Seymour to him, it would have been evidence of title in plaintiff. The award was offered for the same purpose, and had the same effect. As between plaintiff and Seymour, plaintiff owned the hay. The award conclusively established this as against Seymour, and in favor of plaintiff.' The defendant had no interest in the question of ownership, and could not have been made a party to the arbitration. He was simply to pay the true owner, and the award established that, as to the rival claimants.

The judgment should be affirmed, with costs.

Present—Barnard, P. J., Taloott and Tapper, JJ.

Judgment affirmed, with costs.


author: Tapper, J.:

text:
    In the Matter of the Petition of VEEDER G. THOMAS, Assignee, etc., for the Distribution of Certain Moneys in the Hands of the County Treasurer of Kings County, Arising on a Sale in Partition.

      Will—Sale of real estate under decree in partition suit—when proceeds will be considered as realty.

    An interest in certain real estate was devised to one E. for life, with remainder over to her children. While the children were still infants, the real estate was sold under a decree in a suit fór partition, instituted by one of the other tenants in common. Held, that the estate of the infants was not changed by the sale, and that their interest in the proceeds was to be regarded as realty, and not as personalty.
    Distinction drawn between the effect of a sale under the provisions of a will and a sale had under a decree in partition.
    Appeal from an order affirming the report of a referee.
    The facts appear in. the opinion.

      Edwin T. Bice, for the appellant.

      Wm. Henry Anthon, for the respondent.
   Tapper, J.:

Mrs. Haff died in the year 1832, seized of an undivided interest in real estate, and leaving a will, devising the income of the same for life, to her daughter, Mrs. Ryder; the remainder over to Mrs. Ryder’s children. .

The executors were empowered, with Mrs. Ryder’s consent, to be. signified in writing, under seal, and attested by two or more witnesses, to sell any of the real estate, and to invest the proceeds in the purchase of other real estate, and on bond and mortgage; and Mrs. Ryder was to have the income produced by such property, so purchased, or that produced by the bonds and mortgages, in which, the proceeds might be invested. It was further provided as follows : “From and immediately after the decease of my said daughter, the real estate so purchased and the moneys put out at interest on bond and mortgage, shall go to the children of my said daughter, share and share alike, and to their heirs, executors, administrators and assigns, forever.”

The real estate was not sold under the power of sale; the consent in writing, to the executors, was not given. A partition suit was brought by Peter Conover and others, after Mrs. Half’s death, in which action her devisees were made parties. A decree was made in chancery, October 7, 1834, whereby the rights of the several parties were determined, and it was adjudged that the defendants (infants), Aletta Ryder, Anthony Ryder, Sarah Ryder, Margaret Ryder, and Catharine Ryder, were each seized, in fee, of one-tenth of certain of the estate, subject to the life-estate of their mother, Sarah Ryder. As to the other estate, set forth in the decree, they were each adjudged to be seized, in fee, ,of one-twentieth part, subject as aforesaid. The premises were sold and the proceeds brought into court, and subsequently invested from time to time, and finally came to the hands of the county treasurer, who now holds $5,090, for the distribution whereof this proceeding is brought.

It appears that Mrs. Ryder was twice married, and died in November, 1858, leaving, by her first husband, the- live children above named, and, by her second husband, Daniel Richards, two children, to wit, Elvira and Daniel Richards.

Elvira became the wife of Henry P. Bradley; she died intestate, November 17, 1861, without issue or descendant, and leaving her husband surviving. He took administration of her estate, and, as husband and administrator, he assigned to the petitioner the share which he claimed to belong to Elvira, in the moneys aforesaid.

It is asserted by the petitioner, that the moneys, by and on the sale of the realty, became personalty, and that, as such, the hus band of Elvira is entitled thereto.

On the tenth of October, 1859, the Supreme Court made an order, confirming the report of B. D. Silliman, referee, and setting forth that Elvira Richards was entitled, under the will of Mrs. Haff, to one-seventh of the fund then in court; such one-seventh, to wit, $5,090, to be passed to the credit of Elvira, and the interest to be paid to her general guardian.

On the petition in the pending proceeding, a reference was ordered to George G. Reynolds, Esq., who reported thereon. The report was confirmed by order, May 21,1869, and the fund awarded to the brothers and sisters, both of the whole and half blood of Elvira Bradley, as her heirs-at-law. The petitioner filed exceptions to the report, which exceptions were overruled, and he now brings this appeal.

It is to be observed that the fund arose from the sale of the realty, under a decree in partition, and that the sale was not made pursuant to any will, or by the surrogate’s order for the payment of debts; hence, the rule in Kellett v. Rathbun, and kindred cases, that a sale, under the provisions of a will, converts the proceeds of realty into personalty, does not apply.

The disposition of the land of infants by means of a sale under the statute, or in partition, does not change the character of the estate; and this view of the law is repeated in Horton v. McCoy, and in Sweezy v. Thayer.

The controlling feature in the present case is this: the power of sale to the executors of Mrs. Haff, is not unqualified; it is made dependent on a written consent to be signed and sealed by her-daughter, the life tenant, in the presence of two or more credible witnesses. This restriction upon the power of sale, with the non-exercise of that power, prevents the conversion of the realty into personalty, which has been argued'to result from the mere force of an absolute power of sale contained in a will.

The order appealed from should be affirmed, with ten dollars costs.

Present—Barnard, P. J., Taloott and Tappen, JJ.

Order affirmed, with ten dollars costs.

       2 R. S. (3d ed.), 173.

       4 Paige, 102.

         Davison v. Defreest, 3 Sand. Ch. R., 456 ; 3 R S., (5th ed., 41.

       47 N. Y, 21.

       1 Duer, 286.


author: Tappen, J.:

text:
    WALDO HUTCHINS and another, Plaintiffs, v. SARAH M. G. MERRILL and another, Executrixes, etc.

      Will—Besid.ua/ry legatees—no interest m the estate until prior legatees a/re paid.

    The defendants’ testator devised all his estate, both real and personal, to trustees, to apply certain portions of the rents, issues and profits thereof to the use of persons, named in his will, during the life of his wife; and directed that, upon her death, the residue of the estate should, after the payment of certain specific legacies, be divided between the plaintiffs’ assignors. A portion of the rents being undisposed of by the will, the plaintiffs applied to have the accumulation paid over to them. Held, that they were not entitled to receive it; that it did not appear that upon the division of the estate and the payment of the specific legacies, there would be any residue to which the plaintiffs would be entitled.
    A controversy submitted without action, pursuant to section 372 of the Code of Procedure, to obtain a judicial construction of portions of the last will of Eli Merrill, deceased.
    The testator died, in 1855, seized of certain real estate, situated in New York and Brooklyn. By his will, he devised all his estate, both- real and personal, to trustees, to apply the rents, profits and income thereof to certain purposes, therein specified, during the life of his wife, and directed that upon her death, all his estate, not therein otherwise disposed of, be sold, or be divided among certain persons, in the proportions thereinafter specified, as a majority of his executors and pecuniary legatees might then agree or determine; and after the payment of these legacies, he devised the, residue of his estate to his brothers, and certain nephews and nieces named in the will. A portion of the rents of the real estate being undisposed of by the will, the plaintiffs,-who were the - assignees of the residuary legatees, claimed to be entitled to the accumulation in the hands of the defendants, and-brought this action to recover it.

      Waldo Hutchms, for the plaintiffs.

      Edgar M. Gullen, for the respondents.
   Tappen, J.:

This is a controversy submitted without action, for the determination of certain questions arising from the provisions of the will of Eli Merrill, deceased.

There is in the hands of the executrixes, an accumulation of surplus rents of realty, which accumulation the will does not in terms dispose of. It is now claimed on behalf of the plaintiffs, that these rents follow the disposition, made by the will, of the residuary estate, and. that this residuary estate goes, on the death of the widow, to certain persons named in the will, and that they are entitled to immediate distribution of such rents. The widow is still living. After her death, the will provides that the estate shall be sold, or divided in the- proportions hereinafter specified, as a majority of the executors and pecuniary legatees may then agree and- determine; and such division of the estate or distribution of the proceeds to be made as follows:

$10,000, or the value thereof, to Eliza L. Thayer, a niece;
5.000, or the value thereof, to an adopted daughter;
5.000, or the value thereof, to a niece;
500, or the value thereof to a niece; and
500, or the value thereof, to another niece.

An estate of the value of $21,000, will therefore be required, on the death of the widow, to satisfy these provisions.

The undisposed residue or proceeds of the estate, are directed to be equally divided among such of the following named persons, as shall be living at the widow’s death. These persons are Ira and John Merrill, brothers of the testator, and certain nephews and nieces, who are named; and they are now represented by the plaintiffs, who claim to be entitled to the surplus rents, by reason of certain conveyances by the residuary devisees, of the residuary estate, as set forth in the case agreed on. It will be seen that, before the residuary devisees take anything, the estate must respond to the extent of $21,000, in land or money, to satisfy the claims of the prior beneficiaries. The value of the estate is not stated. These prior beneficiaries are entitled to intervene between the surplus fund and the residuaries, and they have not been heard, nor are they represented in this ease. The plaintiff’s grantors or assignors, if presumptively entitled to the next eventual estate, on the death of the widow, under the provisions of the statute, are postponed until satisfaction of the claims of the persons, called by the testator his pecuniary legatees.

It does not appear that any estate will reach the residuary devisees ; but it is possible that all the estate will be required to meet the prior devises or bequests.

The facts, so far as placed before the court, do not justify judgment for the plaintiff, and, subject to further proceedings, judgment is ordered for the defendants.

Barnard, P. J., and Talcott, J., concurred.

Judgment ordered for the defendants.

       1 R. S., Edmund’s ed., p. 675, § 40.


author: Talcott, J.:

text:
    ABRAHAM HEWLETT, Appellant, v. SAMUEL WOOD and others, Respondents.

      Partition—Chop. 238, 1853—Issues in the action—when to be tried by a jury.

    The plaintiff brought this action, as heir-at-law of Abraham Wood, deceased, to obtain the partition of certain lands in the possession of the defendants, who claimed them as devisees of said Wood. The plaintiff alleged that the devise was void, and brought this action in pursuance of chapter 238, Laws 1853. A motion was made by the plaintiff, for an order directing the settlement of the issues in the action, and that the same be tried by á jury. Held, that it was error for the Special Term to deny the motion.
    Appeal from an order made by the Special Term of Kings county, denying a motion made by the plaintiff for the settlement of the issues in the action, and for their trial by a jury.

      E. T. Sohenck, for the appellant.

      A. Wakem-an, for the respondent.
   Talcott, J.:

This was an action in form for a partition, but it appears that the real question in controversy is as to the validity of a devise made by Abraham Wood, who died seized of the property in question. The defendants are in possession of the property, claiming under the will sought to be impeached, and denying the title of the plaintiff as heir-at-law. In such a case, no decree for the partition could have been made before the act of 1853. The act of 1853 provides that heirs, claiming by descent from an ancestor who died in possession, whether they be in possession or not, notwithstanding any apparent devise, may prosecute an action for partition, notwithstanding any possession under the devise, provided they shall allege and establish in such action, that the apparent devise is void. Under this statute, the action is maintainable, notwithstanding the adverse possession of those claiming to be devisees. The case has been once before tried; a new trial has been ordered by the Court of Appeals; and it appears that the questions to be litigated, are as to the mental capacity of the testator, and whether or not the will in question was procured through undue influence, imposition and fraud, involving the examination of a large number of witnesses and conflicting testimony. Such questions, when they arose in a court of equity, were referred to a jury for trial. In an action in equity, before the Revised Statutes, when the legal title was in controversy, the practice of the court was to retain the suit, until the title could be established at law. After the Revised Statutes, the practice was to dismiss the complaint without prejudice to a new suit, after the title had been established ,at law.

The provisions of the Revised Statutes on the subject of partition, clearly contemplate, if they do not require, a trial by jury, where the legal title is in dispute; and section 448 of the Code applies the provisions of the Revised Statutes, relating to partition, to actions brought under the Code for the same purpose, so far as the same can be so applied to the substance and subject-matter of the action, without regard to its form.

It is assumed that the action for partition under the Code, is an action in equity. Assuming this to be correct, and assuming that a court of equity had jurisdiction in such a case to decide upon and dispose of the legal title where that is in dispute, still, as we have seen, that court did not attempt to do so in such a case, without the intervention of a jury. There is nothing in the act of 1853, before referred'to, which undertakes to change the mode of trial in such cases. In fact, the action for a partition, under the act of 1853, is in the nature of an action of ejectment; the partition can only be granted as incidental relief, depending on the prior establishment of the legal title, which is the main point in controversy. The refusal to grant an issue in such a case, is good ground for an appeal. The counsel for the respondent claims that no issue of fact is made by the pleadings. The plaintiff, following the language of the act of 1853, before referred to, alleges that the will, under which the defendants claim, is void. It is quite probable that this allegation, as a matter of pleading,.is too general, and that the defendants might have compelled the plaintiff to make his complaint more specific in this respect. But if they saw fit to go to trial on this general allegation, they subjected themselves to the consequence, that any evidence, showing the will to be void, is admissible, and any embarrassment, arising from the generality of the allegation, can be remedied on the settlement of the issues.

On the whole, we think the Special Term erred, in refusing to settle issues, in the action, to be tried by a jury.

The order appealed from is reversed, and the issues of fact, touching the validity of the will of Abraham Wood, must be settled in the usual manner, and tried by a jury; ten dollars costs of the appeal to abide the event of the action.

Present — Barnard, P. J., Talcott and Tappen, JJ.

Ordered accordingly.

       Burhans v. Burhans, 2 Barb. Ch., 398; Florence v. Hopkins, 46 N. Y., 182.

       Sess. Laws of 1853, p. 526.

         Story’s Eq. Jur., § 72.

       Wilkin v. Wilkin, 1 Johns. Ch. R., 111; Coxe v. Smith, 4 J. C. R., 271.

       2 R. S., 319-20; §§ 16, 17, 18, 19 and 23.

       Willard’s Eq. Jur., 704.

       Townsand v. Graves, 3 Paige, 457.


author: Talcott, J.: •

text:
    LOFTIS WOOD, Plaintiff, v. ALFRED C. SQUIRES, Defendant.

      Contract for purchase of land—Assessments and assessment sales—when incumIrranees—Effect of statute of Imitations on lien of assessment.

    Defendant agreed to purchase certain land of plaintiff, the deed to be delivered on the 3d day of January, 1874. At the time agreed upon, there were two assessments, which had been levied upon the premises, and confirmed by the trustees of the village of Williamsburgh, one in January, 1851, and the other in July, 1852, both of which stood upon the records unpaid and undischarged; the premises had also been twice sold for unpaid assessments, once in November, 1847, and again in October, 1851, both of which sales appeared on the records as unredeemed and uncanceled, but neither of the vendees had ever entered into the actual possession of the premises, or exercised control over the same. On accoimt of these assessments and sales, defendant refused to complete the purchase. Held, that he was justified in so doing. That they were valid incumbrances on the premises, which the defendant was entitled to have discharged before he could be required to perform the contract on his part.
    In the absence of any adverse possession, the possession follows the legal title.
    Case agreed upon and submitted without action, under section 372 of the Code. The facts are stated in the opinion.

      Theodore T. Jackson, for the plaintiff.

      Clement & Cooke, for the defendant.
   Talcott, J.: •

By the statement contained in this case, it appears that the parties, in December, 1873, entered into an agreement in writing, whereby said Wood agreed to sell, and said Squires to purchase, a certain lot of land on Humbolt street, in Brooklyn. Squires was to pay on said purchase, the sum of $400, January 3d, 1874, and give his bond and mortgage for the balance of the purchase-money. On the said 3d day of January, 1874, Wood executed, acknowledged and tendered to Squires, a deed conveying the premises to Squires in fee, with covenants of warranty and against incumbrances, and other usual full covenants,” and demanded the payment of the $400, and the execution of the bond and mortgage. In January, 1851, an assessment was levied upon the premises, and confirmed by the trustees of the village of Williamsburgh, and, in July, 1852, another assessment was levied upon the same premises, and confirmed by the common council of the city of Williams-burgh. The first of said assessments was for fifty dollars, and the second was for sixty-nine dollars. These assessments, it is admitted, became, at their several dates, valid liens on the premises, and warrants were issued thereon to the collectors, the same returned uncollected, and the same stand upon the records unpaid and undischarged. No sale of said premises has ever taken place on either of said assessments.

On the 29th of November, 1847, the premises were duly sold by the trustees of the village of Williamsburgh, for an unpaid tax, to George W. Niles for the term of forty-five years, and a declaration of sale was duly issued to said Niles; and, in October, 1851, the premises were again sold by said trustees, for another unpaid tax, to George Ricard for 100 years, and a declaration of sale duly issued to Ricard. The sales appear on the records as unredeemed and uncanceled, but neither of the vendees has ever entered into the actual possession of the premises, or exercised control over the same.

Squires objects to complete his contract, because of the said outstanding assessments and the said sales. Wood, the vendor, insists that the liens of the assessments, on which no sale has been had, are barred by the presumption of payment arising from lapse of time, and that the claims of Niles and Ricard under the sales, are barred by the statute of limitations, more than twenty years having elapsed since the title of said purchasers accrued, without any steps taken to obtain possession. It is agreed that all the proceedings upon the assessments and sales in 1847 and 1851, were valid and effectual, and according to the provisions of law.

The question intended to be submitted to the court apparently is, whether the vendor is bound to clear away the apparent incumbrances and outstanding titles, before he can compel a performance of the contract on the part of the vendee.

As to the sales to Niles and Ricard, this seems to be quite plain. By section 49 of the act to condense and amend the several acts relating to the village of Williamsburgh, passed April 23d, 1844, the sales and declarations of sale, made in pursuance thereof, gave the legal title to the purchaser from the time of the purchase. It does not appear from the case, that the statute of limitations can constitute any defense against the titles of Hiles or Ricard, for it does not appear that the premises have been held adversely to their titles, at any time since such titles accrued. In fact it is not shown that the premises have ever been occupied at all. In the absence of an adverse possession, the possession follows the legal title, and section 78 of the Code, is to be read in connection with section 81.

The question as to the assessments upon which no sales have been made, is more embarrassing. Yet on the whole, the vendor, before he can compel the vendee to take the title, must clear away these assessments. The acts under which these assessments were levied, declare that the assessment shall be a lien from the time of confirmation. Ho period at which the lien will expire is fixed by the statute, nor is any time specified in the statute, after which the assessments shall be deemed discharged, or within which the proceedings provided for their collection shall be instituted. The statute creating an absolute presumption of payment after the lapse of twenty years, without part payment or a written acknowledgment has no application, otherwise than by analogy, to the case. It is by its terms confined to judgments rendered in courts of record and to rights of action accrued on a sealed instrument. The general presumption of payment, applicable to stale demands, which exists independently of the statute, might doubtless be applied to such a case, and would doubtless apply with great force, as a question of fact and presumption, but nevertheless it is a question of fact. Upon the principles which have been settled on this subject, we do not think the vendee is bound to take a title incumbered with this doubt. In the case last cited, Folger, J., delivering the opinion of the court, says: “ If there be any' reasonable chance that some third person may raise a question against the owner of the estate after the completion of the contract the court considers this a cir cumstance which renders the bargain a hard one for the purchaser and one which it will not in the exercise of its discretion compel Mm to execute.”

For the purposes of this case, then, we answer the fourth question contained in the case submitted to us, that the said assessments and sales stated in the case submitted, are, and each of them is, a valid incumbrance on the premises described in the complaint, which the said defendant Squires is entitled to have discharged, before performing his contract.

Judgment to be entered according to the stipulation in the case.

Present—■ Babnabd, P. J., Tappen and Talcott, JJ.

Judgment ordered accordingly.

       2 R. S., 301.

       Jackson v. Sackett, 7 Wend., 94.

         Morange v. Morris, 3 Keyes, 48; Brooklyn Park Commisioners v. Armstrong, 45 N. Y., 234.


author: Barnard, J.:

text:
    ELIZABETH THOMPSON, Respondent, v. JOSEPH EGBERT, Appellant.

      Partnership — title to lands of, taken in name of a pa/rtner —r Equitable defense—when allowed, in a legal action.

    This action was brought by the plaintiff as sole devisee of John 0. Thompson, deceased, to recover certain lands in the possession of the defendant. The defendant alleged in his answer that the land was bought as partnership property by J. 0. Thompson and defendent", and that the deed was taken in the name of J. 0. Thompson, which was the firm name; that he had paid his share toward the purchase; that he was in possession as partner, and had expended a large amount in improving the land. At the trial, the justice excluded proof of these allegations; held, that this was error.
    Appeal from a judgment in favor of the plaintiff. The facts are stated in the opinion.

      George P. Avery, for the appellant.
    It was necessary to show that appellant was in unlawful possession. (53 Barb., 155.) An equitable defense is legitimate, in an action of ejectment. (Code, § 150 ; Carr v. Carr, 52 N. Y., 251; Fiedler v. Darrin, 50 id., 438 ; Ryan v. Dox, 34 id., 307; Murray v. Walker, 31 id., 399 ; Phillips v. Gorham,, 17 id.. 270.) The statute of frauds does not apply. A partnership in lands may be proven by parol, (Chester v. Dickerson, 52 Barb., 349; Hiscock v. Phelps, 49 N. Y., 98; Garrett v. Schoeffer, 47 id., 655; Sage v. Sherman, 2 id., 423.)
    31 Wesfcí’yefó, for the' respondent.
   Barnard, J.:

The plaintiff is the widow of John 0. Thompson, and sole devisee under his will, of all her husband’s real estate. As such, she brings this action to dispossess the defendant from certain lands, which are situate in Richmond county, and which her husband took by deed from Abram Hallock.

The defendant, in his answer, set up as a defense, that the property was bought as partnership property, by John G. Thompson and defendant, as partners, and the deed was. taken in the firm name, which was John C. Thompson. That the defendant had paid his share toward the purchase, and that he was in possession as partner, and had paid a large amount in the improvement of the land. Upon the trial, the justice excluded the proof offered by defendant, to show a partnership in the lands by parol, and also to establish the other averments contained in the answer. We think this erroneous.

It is well established now, that an equitable defense may be set up to a legal action. This is not questioned by the respondent.

His claim is that the defendant asks no affirmative relief, based upon his equitable claim. This is true, but if his answer is proven, he is not wrongfully in possession as against the plaintiff, and by reason thereof this action fails. Indeed, I do not see what equitable relief he could ask, as against the plaintiff. She was simply a devisee of her husband’s lands. She had no interest beyond this property, in the partnership or its assets, or in its liabilities. She could bind no one by a litigation upon these questions. She alone brings this action, and when the defendant meets her claim, he does all that is required of him in the action.

The judgment should be reversed and a new trial granted, costs to abide event.

Present — Barnard, P. J., and Taloott, J.

Judgment reversed and new trial granted, costs to abide event.


text:
    J. JAMES GLOVER, Respondent, v. THE VILLAGE OF EDGEWATER, Appellant.

      Chapter 674, 1870—Zands in village of Edgewater—how assessed—Municipal officers — neglect of duty hy—effect of.

    Section one of title six of chapter 674 of the Laws of 1870, provides that the assessment roll for the village of Edgewater is to be prepared “ in all respects, as far as practicable and consistent with the provisions of this act, in the manner prescribed by law in respect to assessments made by town assessors.”
    Land in the village belonging to the plaintiff, who was a non-resident, was assessed to him as a resident. Meld, that the provisions of the Revised Statutes relate only to the taxes to be raised for town, county and State purposes; that under its charter, all lands in the village must be assessed in the name of the owner or occupant, and that the non-residence of an owner only gives him the right to be notified of the sale as provided by the act.
    . Section five of title twelve of the charter, requires that, at the expiration of ninety days from the delivery of the warrant to him, “ the treasurer shall make a return, under oath, of all such taxes and assessments upon any lands or premises which shall be unpaid in whole or in part, and shall file the same in the office of the village clerk; and such treasurer shall annually, between the first day of March and the first day of April, cause such lands to be advertised for sale at public auction; ” held, that the neglect of the treasurer to make the return as required by the act did not deprive him of the power of selling the lands.
    Appeal from a judgment in favor of the plaintiff.

      T. C. Vermilye, for the appellant.

      Robert Christie, for the respondent.
   Opinion by Babnabd, P. J.

Present—Babnabd, P. J., Talcott and Tafpen, JJ.

Judgment reversed and new trial granted.


text:
    ELIZA INGRAM, Administratrix, etc., of WM. INGRAM, Deceased, Respondent, v. LYDIA F. YOUNG and another, Administrators, etc., of OLIVER YOUNG, Deceased, Appellants.
    Wmmg-do&r—3 li. S., 5th od.,p. 168—Agent—ratification of acts of.

    William Ingram died, intestate, July 16th, 1864, leaving a widow, the plaintiff, and two minor children. The deceased had, at the time of his death, in his residence, $635 in money, and $300 in certificates of deposit, in the Port Jervis Bank. Immediately after his death, Oliver Young, the defendant’s intestate, and the uncle of the plaintiff, told her that it was not safe to keep the money and securities in the house, and he afterward, apparently with her consent, deposited the same in the Port Jervis Bank. The plaintiff drew from the bank $335, and the .remaining $700 was invested by Young in Government bonds, which were deposited in the bank, the plaintiff going to the bank and drawing the interest upon them regularly, up to July 1st, 1869. In December, 1869, the bank was robbed, and these bonds were stolen. In January, 1873, the plaintiff was appointed administratrix of William Ingram, and, Young having died, this action was brought to recover of his estate the value of the bonds; held, that she could not recover; first, because Young acted as her agent, and was not chargeable on the testimony either with neglect or conversion in respect to the property; and second, because the plaintiff adopted and ratified his act in investing the money and depositing the bonds.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.

      Groo (& Wiggins, for the appellant.

      Lewis E. Garr, for the respondent.
   Opinion by Tappen, J.

Present—Talcott and Tappen, JJ.

Judgment reversed and new trial ordered.


text:
    JOHN G. BAINBRIDGE, Executor, etc., Appellant, v. ANDREW McCULLOUGH, Administrator, etc., Respondent.

      Executor—accounts of— objections to — mmt be specific.

    The defendant obtained an order from the surrogate of the county of Queens, requiring the plaintiff to render his account, as executor, and show cause why the claim of the defendant, founded upon a judgment docketed against the plaintiff’s testator during his lifetime, should not be paid. An account, duly verified by the plaintiff, with the proper vouchers, was thereupon filed with the surrogate, showing a balance of $9.36 in his hands, applicable to the payment of the defendant’s claim. At the hearing before the surrogate, the defendant urged that a large part of the expenditures, mentioned in the account, was not necessary for the settlement and preservation of the estate, and objected specifically to several items. No proofs of any kind were taken, save the account and vouchers, nor was the executor-examined. Subsequently the surrogate made an order, directing payment of the defendant’s claim, $734.91. Held, that, as it nowhere appeared that the surrogate passed upon the items objected to, allowing or disallowing them, and as the verified accounts of the executor with vouchers for all the payments, raised the presumption that the payments were properly made, and, as it rests with the party objecting, to establish more assets than are acknowledged by the account or inventory, the order was improperly granted and should be reversed.
    The proper practice is to state the objections in the form of distinct and specific allegations and give proof thereof, and this applies to all objections.

    Appeal from an order of the surrogate of the county of Queens, decreeing payment to the defendant, of $724.91.

      Sewell & Pierce, for the appellant.

      John Fleming, for the respondent.

       Metzger v. Metzger, 1 Brad., 265; Westervelt v. Gregg, 1 Barb. Ch., 469.

       Marre v. Ginochio, 2 Brad,, 165.

       Williams on Exec., 1784; Young v. Skelton, 3 Haggard, 784.

   Opinion by Tappen, J.

Present — Barnard, P. J., Talcott and Tappen, JJ.

Ordered reversed and proceeding remitted to surrogate.


text:
    BERNARD COSTELLO, Respondent, v. ANN T. DALE, Appellant.

      Mechanics' lien—items of work—action to enforce a lien for labor— Ohap. 558,1869.
    The plaintiff performed certain services, under a written contract to plaster a house for a fixed sum. Work was commenced in April, 1873. The plaintiff did other work by order of the defendant, from time to time during the summer, the last item of work being performed 14th August, 1873.. The lien was filed 7th September, 1872. The defendant asked the court to charge that, as matter of law, all work done previous to thirty days before the filing of the lien, must be excluded. The court refused so to charge. Meld, that such refusal was proper. The lien act (chapter 558,1869) gives liens for labor done, provided the notice is filed within thirty days after the performance and completion of such labor. The plaintiff’s evidence tended to show that it was all really one piece of work, although the items were directed to be done, and were done, at different times between April and the fourteenth of August, and he was entitled, under the lien act, to recover for all his labor.
    Appeal from a judgment of the County Court of Westchester county in favor of the plaintiff, entered upon a verdict.

      George A. Black, for the respondent.

      Mundy & Stout, for the appellant.
   Opinion by Barnard, P. J.

Present—Barnard, P. J., Tappen and Taloott, JJ.

Judgment affirmed, with costs.

       See Goodale v. Walsh, 2 N. Y. Sup. Ct. R., 311.


text:
    JOHN DEVLIN, Respondent, v. GEORGE D. CRARY and others, Appellants.

      Sale—Delivery.

    This action was brought to recover the price of certain whiskey, sold and delivered by the plaintiff to the defendant.
    The defendants disputed the price, denied that the delivery was complete, and alleged that the goods were seized by the United States Government, by reason of certain unlawful acts of the plaintiff. The action was referred, and the referee found that the sale and delivery were complete, and determined the value of the goods. Held, that “the evidence fully sustained the referee in his finding,” and “ that without proof that the whiskey was seized by the United States Government for the plaintiff’s acts, or his omissions to act, the defendant was liable,”
    Appeal from a judgment in favor of the plaintiff, entered on the report of a referee.

      De Witt & Johnson, for the plaintiff.

      E. T. Wood, for the defendant.
   Opinion by Babnabd, P. J.

Present—Babnabd, P. J., Tappen and Taloott, JJ.

Judgment affirmed, with costs.


text:
    EDWARD MORAN, Respondent, v. EDWARD A. DARRIN, Appellant.

      Contract—Fraud—Pa/rty entitled to recover money paid under.fra/udulent contract.

    On the execution of a contract for the conveyance of land, the plaintiff was defrauded by an intentional omission of part of the property, which the defendant agreed to convey. The fraud was not known to the plaintiff, and, after its discovery, the defendant having refused to execute a contract such as should have been drawn, held, that the plaintiff had a right to maintain his action to recover the money payments, and that the fraudulent contract gave defendant no right to retain the money.
    Appeal from a judgment, entered on a verdict in favor of the plaintiff.

      Ira, D. Warren, for the respondent.

      OharlesWhelp, for the appellant.
   Opinion by Babnabd, P. J.

Present—Babnabd, P. J., Tappen and Taloott, JJ.

Judgment affirmed, with costs.


text:
    GEORGE A. MILLER, Appellant, v. CATHERINE HUNT, Respondent.

      Married, woman—articles supplied to, by order of husband — Separate estate of—when

    This action was brought to recover the price of certain manufactured articles, for the repair of a house belonging to the defendant. The articles were ordered by the husband of the defendant; and the jury having found that he was the general agent in reference to the repairs, and the defendant having accepted the fruits of his acts which increased the value of her estate, held, that the defendant was liable.
    Appeal from a judgment of the County Court, reversing a judgment of a Justice’s Court.

      Groo & Wiggins, for the appellant.

      J. V. D. Benedict, for the respondent.
   Opinion by Barnard, P. J.

Present—Barnard, P. J., Talcott and Tappen, JJ.

Judgment of County Court reversed, and judgment of Justice’s Court, in favor of plaintiff, affirmed, with costs.


text:
    RICHARD ROWLAND, Respondent, v. BENJAMIN A. HEGEMAN, Appellant.

      Evidence.

    “ The only exceptions presented by the appellant, where the ruling was claimed to have been erroneous, arc those where the admission of the testimony was claimed to have been contrary to section 899 of the Code, as calling for a conversation between the witness and the testator. The testimony of the witness could not possibly have prejudiced the defendant. So far as it went, it was additional evidence of the same fact which the defendant had already sought to prove. As to the question of fact the referee did not err.”

      Appeal from a judgment in favor of the plaintiff, entered on the report of a referee.

      Horace M. Hastings, for the respondent.

      Confers & I/yman, for the appellant.
   Opinion by Talcott, J.

Present—Barnard, P. J., Tappen and Talcott, JJ.

Judgment affirmed.


text:
    NATHANIEL F. WARING, Respondent, v. HENRY C. YALE and S. P. CARD, Appellants.

      Stay.

    A stay for an indefinite time, to await the result in the appellate court, of an appeal in another action, because, only, of a hope that the judgment may be reversed in whole or in part, is not within the power of the court. Such a stay simply prevents a party from asserting a legal claim, until the decision of an appeal in another action.
    Appeal from part of an order made at Special Term, granting a stay of proceedings in an action upon an undertaking.

      H. F. Waring, respondent, in person.
    --, for the appellants.
   Opinion by Barnard, P. J.

Present—Barnard, P. J., Tappen and Talcott, JJ.

Order granting stay reversed, with ten dollars costs; and motion for stay denied, without costs.


text:
    THE HOPE FIRE INSURANCE COMPANY, v. STEPHEN CAMBRELLING and others.

      Attorney—when knowledge of, is not knowledge of client.

    Cambrelliug being attorney for Mrs Sherwood and Mrs. Babcock, in 1868 executed a mortgage to the latter, but did not record it. In 1869, he executed a mortgage on the same property to Mrs. Sherwood, and this mortgage was recorded. Hdd, that the party whose mortgage was recorded was entitled to the surplus money.
    The rule that knowledge by a solicitor is knowledge by the client, where the solicitor is himself the. borrower, has never been adopted in this State.
    Appeal from order of Special Term.

      Henry Wieoll, for Emily Sherwood, appellant.

      O. A. Hand, for H. C. Babcock, respondent.
   Opinion by Barnard, P. J.

Present—Barnard, P. J., Tappen and Talcott, JJ.

Order reversed, with costs.


text:
    HENRY HARTEAU, Respondent, v. THE DEER PARK BLUE STONE COMPANY.

      Injunction — Contempt for violation of— referee—duty of, in proceeding to punish for.

    Where, in a proceeding instituted to punish one Q-. for contempt, for violating an injunction issued in this case, the order of reference, after reciting that the motion to punish the defendants for contempt came on to be heard, thus proceeds, “ it is ordered that this proceeding be and the same is hereby referred to Henry J. Cullen, Esq., a counselor of this court, to take testimony in regard to the same, and report with all due speed to this court his opinion thereon; ” held, that it was the duty of the referee, under such order, to take proof as to, and to determine the extent of, the loss and injury which the plaintiff had suffered by the violation of the injunction.

      Appeal from an order of the Special Term, convicting A. E. G. of contempt, in violating an injunction, issued in this case, and imposing a fine therefor.
   Opinion by Talcott, J.

Present — Barnard, P. J., Tapped and Talcott, JJ..

Order affirmed, with costs.


text:
    JAMES A. WHITBECK, Respondent, v. STEPHEN BILLINGS and DENNIS McGUIRE, Appellants.

      School taxes—seizure of property by collector of without proper notice — remedy of party aggiieved — costs — when not allowed — Chapter 555,1864.
    The defendant McGuire, as collector, seized, under the direction of defendant Billings,' the trustee of the district, certain property of the plaintiff, for non-payment of the school tax, without having posted the notices required by law. In an action brought by. the plaintiff for such seizure, held, that the plaintiff had the right to appeal to the Superintendent of Public Instruction, under sections 1 and 2, of title 12, of chapter 555, of the Laws of 1864, and that as the judge, before whom the case was tried, certified, in pursuance of section 6, of title 18, of said chapter, that the defendant acted in good faith, the plaintiff was not entitled to costs.
    Appeal from an order directing the clerk to tax the plaintiff’s costs.
   Opinion by Barnard, P. J.

Present — Barnard, P. J., Talcott and Tapper, JJ.

Order reversed, with costs.


text:
    SIMPSON TOLAN Respondent, v. FRANK CONOVER and another, Appellants.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial.
    The appellant claimed that the testimony in the case was not sufficient to sustain the verdict of the jury, but the General Term held that it was, and affirmed the judgment and .order.

      Britton, Ely and Snell, for the appellants.

      S. D. Morris, for the respondent.
   Opinion by Tappen, J.

Present — Barnard, P. J., Talcott and Tappen, JJ.

Judgment and order affirmed.


text:
    BREWSTER WOODHULL, Respondent, v. SAMUEL B. MOWER, Appellant.
    Appeal from a judgment in favor of the plaintiff, entered on a verdict.

      “ This case presents for review a pure question of fact ” and “ the verdict will not be disturbed.”
    Plaintiff in person.

      C. J. G. Hall, for the appellant.
   Opinion by Barnard, P. J.

Present—Barnard, P. J., Talcott and Tappen, JJ.

Judgment affirmed, with costs.


author: Boardman, J.:

text:
    In the Matter of THE NEW YORK AND CANADA RAILROAD COMPANY, Respondent, v. GEORGE GUNNISON, Appellant.

      Bail/road — Beal estate — when company cannot take without owner’s consent.

    Under the statutes authorizing railroad companies to acquire title to real estate without the owner’s consent, a company cannot take land simply for the purpose of removing gravel therefrom, to he used in constructing a distant portion of its road.
    Appeal from an order of the Special Term, appointing commissioners to appraise the value of the lauds to be taken by the Mew York and Canada Railroad Company, for the purpose of constructing their road.

      Mr. Hutchings, for railroad company.

      D. B. Hill, for George Gunnison.
   Boardman, J.:

Froin a- reading of the appeal papers, it is fair to say that the railroad company needs, and will need, additional lands for side tracks and storing cars. Whether the necessity requires the use of the particular lands in controversy, is not so clear. Still, enough is shown, of difficulties and obstructions in other neighboring localities, to lead to the conclusion that no other property is so available, or could be rendered so useful at so small an expense, as these lands of Gunnison. If so, the selectiomof proper grounds for these, and other necessary purposes, is very much in the discretion of the managers, if exercised in good faith.

But the railroad company claims the right, and indicates an intent to use a portion of the lands, of which it seeks to acquire the title, for the purpose of taking therefrom, gravel, to ballast the road for many miles to the south of Grown Point. It appears that this land is mostly made up of a fine quality of gravel, suitable for such purpose, and that no suitable gravel can be obtained for fifteen miles south of it. One of the objects for which such laud is necessary to said company, is to excavate and carry away this gravel for ballast.

The right of eminent domain is harsh in its application to individual rights. It is given for the public advantage, and to accomplish a public purpose. To accomplish such purpose, the railroad company is allowed to take private property, upon just compensation. Whatever is essential and indispensable to the construction, maintenance or running of the road, is allowed to be taken. What the company acquires, is not a fee simple to the lands—not an absolute right to use them, irrespective of the title and interests remaining in the individual—but a right of way, and the right to adapt the soil and land, within its limits, to the ordinary uses and necessities of such a way.. If a cut is required, the soil taken therefrom may be used for a fill, wherever needed. But it has not been considered lawful, so far as I can discover, to take lands outside the limits of its way; to remove earth, timber, rocks or materials therefrom for the building of its road, under the right of eminent domain and public necessity. At page 552, of the last case, Allen, J., says: The right to take lands upon which to erect a manufactory of cars * * * is not included in the grant. Neither can lands be taken for a mere subsidiary or extraordinary purpose.” He then indicates many of the purposes considered indispensable, such as justify the taking of land m iiwitum. But he nowhere intimates that the soil, below grade, may be taken and carried away for use in other localities. Such an act would be in excess of a right of way, or passage. Such act is not essential to the construction and maintenance of a railroad, more than the use of ties or fuel. Yet, no one would maintain that a railroad company could condemn land, for the purposes of ties or fuel.

The general principles, applicable to such cases, are well considered in R. R. Co. v. Davis. The right of condemnation is the exercise of an extraordinary power reserved by the State, in hostility to the private rights of citizens. It must therefore be expressly granted, when exercised by a private or municipal corporation. The grant will not be extended by inference or implication. Nor can anything be taken, except by virtue of the law, for the benefit of the public, and under an indispensable necessity in the construction and maintenance of the road. It is not sufficient that it is convenient or cheaper for the road. Because, such a rule would apply to ties, fuel, or outside soil for the purposes of embankments. It follows that the railroad company cannot acquire the right to this land, for the purpose of excavating the soil and carrying it away for many miles, under the doctrine of eminent domain, by virtue of the statutes now in force.

The statute of 1869 enlarges the rights and powers of railroad companies, but such law only applies to railroads completed, and to the acquisition of other lands beyond their original necessities. But upon the merits of this case, the railroad company does not bring itself within any rule of necessity. All that is claimed in the affidavits on behalf of this application, is, that no gravel, suitable for ballast, is to be had upon its road, south of these lands, for ten or fifteen miles; and that no other gravel, as good as this, is found upon the line of its road, between Port Henry and Putnam, a distance of twenty miles. By the affidavit of Buck, it appears that the company has obtained large amounts of gravel, just north of these lands; and, upon information and belief, that the company has purchased and owned several acres, within one-half mile of Gunnison’s, on the north, and that additional gravel beds can there be procured, at a reasonable rate. By the affidavit of W. 0. Gunnison, it further appears that the company owns another gravel bed, of great extent and good quality, from four to five miles north of Gunnison’s, and, since March, 1873, has been removing the same for railroad uses. These facts are not controverted by the petitioner.

In view of these facts, of the value and situation of these lands, it would seem to be an unjust and unnecessary exercise of the power conferred upon the company, if these lands, or any part thereof, were taken for the excavation of gravel therefrom.

By reference to N. Y. and B. R. R. v. Godwin, and Matter of N. Y. and J. R. R. Co., it may be doubted whether the map of the company, on file, properly shows the extent of the land to be taken. I am inclined to the opinion, however, that the description in the petition is sufficient, and obviates the objection to the proceedings.

No other objection requires particular notice. It follows that the order of the Special Term should be reversed, with ten dollars costs, and the motion to appoint commissioners of appraisement, should be denied, with ten dollars costs, but without prejudice to a new application.

Present—Miller, P. J., Boardman and James, JJ.

Order reversed, with costs

       1 Red. on Rail., 242 (n 6), 247, (n 2); In Matter of N. Y. and H. R. R. v. Kip, 46 N. Y., 546.

       43 N. Y., 137.

       Chap. 237.

         Railroad Co. v. Davis, 43 N. Y., 143.

       12 Abb., N. S., 21; S. C., 62 Barb., 85.

       21 How., 434.


author: B oakum an, J.:

text:
    JOHN B. NORTON, Appellant, v. RUSSELL B. MALLORY AND ANOTHER, RESPONDENTS.

      Statute of mes and trusts—what trmts not affected by — When ti'usts corise by implication of law— Gomeya/nce by tt'mtee to cestui que trmt—when fraudulent, as to creditors.

    In 1868, Sarah Mallory, the mother of the defendant, Russell, was the owner of a lot of forty-one acres, and had an interest in certain other real estate in connection with her said son, who desired her to unite with him in the sale of the latter, and allow him to receive and enjoy the proceeds of such'sale, for his own use and benefit. It was finally orally agreed that this should be done, and, in consideration thereof, the said Russell, the heir-at-law of the said Sarah, agreed that upon her death, he would convey the forty-one acres to his son, the defendant, F. E. In pursuance of this agreement, the sale was made. Sarah died in September, 1868, intestate. In November, 1870, the defendant, Russell, without any intent to cheat or defraud his creditors, conveyed the forty-one acres to his said son, hy deed, which was recorded November 26,1870. Prior to that, time the plaintiff had commenced actions against the said Russell, in which he subsequently recovered judgments. This action was brought, to have the conveyance set aside. Held, that the complaint was properly dismissed. That upon the death of Sarah Mallory, the land descended to Russell, as her heir-at-law, and he held the same, as trustee for his son. That his agreement to convey the same was founded upon a valuable consideration, and would he enforced by a court of equity. And that as the trust arose hy implication of law, it was not invalidated hy the statute of uses and trusts.
    Appeal from a judgment, dismissing plaintiff’s complaint with costs.
    Sarah Mallory was the mother of the defendant, Russell B. Mallory, and grandmother of the defendant, Frederick E. Mallory, who is the son of Russell B. Mallory. In 1868, Sarah was the owner of a considerable interest in real estate, in connection with her son Russell. Russell desired her to unite with him in the sale of such lands, and allow him to have and enjoy, absolutely, the proceeds of such sale, for his own use and benefit. It was finally agreed that this should be done, upon condition that Russell, who was her only heir-at-law, should, at her death, convey a lot of forty-one acres of land, which she owned absolutely and was not to sell, to his son, the defendant Frederick E. Mallory, then an infant about four years old. The sale of all the lands, except the forty-one acres, was accordingly made, and Russell received and retained all the proceeds. In September, 1868, Sarah Mallory died intestate, leaving the defendant Russell, her only child and heir-at-law, whereby he became possessed of an apparent title, in fee simple, to forty-one acres, hy inheritance.
    In November, 1870, the said Russell being then in an embarrassed or insolvent condition, he and his wife joined in the conveyance of said forty-one acres of land to his son, the defendant Frederick E. The deed was recorded, November 26,1870. The judge finds that such conveyance was made in pursuance of the agreement with his mother, and in good faith, without any intent to cheat or defraud his creditors, or hinder or delay them in the collection of their debts, hut with the intent that snch deed should precede the plaintiff’s judgment, hereinafter referred to, and prevent such judgment from becoming a lien upon said lands. After the recording of said deed, the plaintiff recovered judgment against Russell, for about $1,000 in all, upon an indebtedness from said Russell to the plaintiff, existing in April, 1870. Such judgments were duly docketed in Schuyler county, where said lands were situate, and executions thereon were returned unsatisfied, as to a large portion thereof. This action was then brought by the plaintiff, to set aside such conveyance, and to charge said lands with the payment of such judgments.
    Upon the trial, the facts were found substantially as above set forth, and plaintiff’s complaint dismissed, upon the ground that Frederick E. was, in equity, entitled to such conveyance, and that it was not in fraud of the plaintiff.

      Scott Lord, for the appellant.

      John J. Vam, Alim, for the respondents.
   B oakum an, J.:

Prior to the Revised Statutes, no doubt can exist that the arrangement between Russell and his mother would have created a valid trust. “ The most simple form in which an implied trust can be presented is that of property delivered by one person to another, to be by the latter delivered over to and for the benefit of a third person.” “If there be either a good or valuable consideration, equity will raise a use or trust corresponding to such consideration.” Such trusts are treated as implied or created by operation of the law, and are not affected by the provisions of the Revised Statutes. The case under consideration is not a resulting trust in favor of creditors, under section 52, because the plaintiff is not a creditor of the person paying the money. She paid the consideration to Russell, who, by her death, took the title to the land in question, under a contract, by which he held the legal title in trust for*, and subject to, the equitable title of his son. By the fiftieth section, trusts arising or resulting by implication of law, are not abolished. The trust in this case is of that character and is valid.

The evidence justified the court below, in finding the existence of the agreement, under which the trust arises. The agreement and payment of the consideration being so found upon sufficient evidence, the consequences are inevitable. It would be inequitable and unjust that Russell should have the consideration, derived from the sale of Ms mother’s lands, for the payment of his debts, and that his creditors should still be at liberty to take the property in dispute, devoted by the mother to an entirely different purpose. The creditor would thus have a double fund, out of which to secure Ms debt. The second fund would be one not justly applicable to the payment of the debt, or equitably belonging to the debtor, but, in fairness and good conscience, belonging to Fred. E., under the agreement. Fred. E. was and is an infant of such tender years, as to be incapable of understanding or assenting to the arrangement between his father and grandmother. But, as the agreement was beneficial to him, the court will assume his assent and acceptance of the property under the deed. The ease is stronger for the beneficiary than that of Sieman v. Austin, where the creditor’s judgment was recovered and became a lien upon the trust property, before the conveyance from the trustee to the cestui que trust. In other respects, it is very similar. In that case, it was held that the Revised Statutes, relating to uses and trusts, were inapplicable, and that the common law governed the rights of the parties. The same view is taken in 4 Kent’s Commentaries. If a trust be created for the benefit of a third person without his knowledge, he may when he has notice of it, affirm the trust, and call upon the court to enforce the performance of it.” It is also held, in Sieman v. Austin, that the prohibition of section 51, of a trust resulting to the person paying the consideration, does not apply to a resulting trust for the benefit of a third person. Such conclusion must be still more clear, when such person, as in this case, was not of an age to know of, or assent to, the act by which the title vests in the trustee. The authorities are quite conclusive, that a trust, of the character claimed in this case, may be created, and. that, when created, the equities of the cestui que trust are superior to those of any creditor of the trustee, except, perhaps, an incumbrancer who has parted with his money upon the security of the property, without notice of prior equities. It is claimed by the appellant, that a trust cannot be created by parol. The Revised Statutes prohibit the creation of trusts, except by act or operation of law, or by writing, etc. The next section (7th) provides that the sixth section shall not be construed to prevent any trust from arising by implication or operation of law. Such trusts may be proved by parol, provided they flow from acts, relations, situations and conditions of the parties, impressing property with trust character, and imposing upon the party holding property, the obligations of a trustee towards the beneficiary.

Conceding the findings of the court below to be right (and there is no evidence from which a doubt can arise), the case was properly disposed of. The suggestions of danger from such secret trusts, and from perjury in establishing them, are pertinent and forcible, but are properly addressed to the court of original jurisdiction. Having produced conviction there, and being in no respects incredible, impossible or contradicted, this court would not be justified in disregarding or disbelieving such evidence.

I am inclined to the belief that Davis’ testimony was admissible upon the question of Russell’s good faith in making the deed to his son. But if it were not, there is abundant and uncontradicted evidence without it, to sustain the conclusions of the court below. In equity cases, errors in the reception of evidence will not be regarded, when it is apparent they could not have affected the result.

If these views are correct, the judgment should be affirmed with costs.

Present—Miller, P. J., Boardmajt and James, JJ.

Judgment affirmed, with costs.

       2 Story’s Eq. Jur., § 1196.

       Id., § 1197; see also Id., § 1210.

       2 R. S., 728, §§ 50, 51, 52 and 53.

       33 Barb., 9; affirmed in 29 N. Y., 598.

       Page 307.

         Ante.

       2 R. S., 135, § 6.

       Foote v. Bryant, 47 N. Y., 544; Perry on Trusts, § 137.

       Foote v. Bryant, 47 N. Y., 544, 551; Rundle v. Allison, 34 N. Y., 180, 184; Ashley v. Marshall, 29 id., 494, 502.


author: Boaedman, J.:

text:
    STEPHEN W. CARD, Plaintiff, v. JOHN K. MILLER and PARMELIA MILLER, Defendants.

      Promissory note— Alterations of— when material—when note avoided by.

    The defendant, J. K. Miller, made his promissory note for $500, payable to the order of one Knapp, the note reading, “ I promise to pay,” etc. Subsequently, Knapp, without the knowledge or consent of J. K. Miller, persuaded the defendant, P. Miller, to sign her name to the note, under the name of J. K. Miller. Afterward, and before its maturity, the note came into the hands of the plaintiff, a bona fide purchaser, for a valuable consideration, without notice. In an action brought by him upon the note, held, that he was entitled to recover against both of the defendants. That the addition of P. Miller’s name to the note, was not a material alteration thereof, and did not render it invalid as to the original maker.

      Brownell v. Winnie (29 N. Y., 400) and McCaughey v. Smith (27 id., 39), followed; Chappell v. Spencer (28 Barb., 584) and McVean v. Scott (46 id., 379), overruled.
    Motion for a new trial, on exceptions ordered to be heard in the first instance at the General Term.
    On October 31, 1871, the defendant, John K. Miller, made and delivered to one Knapp, his promissory note for $500, payable to the order of the said Knapp, six months after the date thereof. The consideration for such note, was the assignment by the said Knapp, as attorney for one Jenclis, of letters patent for an improved match safe, and an agreement between Knapp and Miller to enter into the manufacture of such safes, as partners. Knapp, however, only wanted the note to satisfy Jencks that the sale had been made, and agreed that the note, or Miller’s half of it, should only be paid out of the profits of the business.
    After the note had thus been- made and delivered by John K. Miller to Knapp, the latter, in three or four days, went to Parmelia Miller, the mother of defendant, John K. Miller, and, without the knowledge or consent of John K., persuaded her to sign her name to the note, under the name of John K., the note being written “I promise to pay,” etc.
    Soon after the note had been so signed, Knapp sold and transferred the note to one Sprague, and, by subsequent sales, the note came into the hands of the plaintiff, for a valuable consideration, before it was due,, and without notice on the part of the plaintiff, of any defects or defenses. The note not being paid when due, this action was brought, and, upon the trial at the circuit, a verdict was ordered by the court for the amount of the note, against both defendants.
    Two exceptions were urged upon this motion for a new trial, which were ordered to be heard in the first instance at the General Term.
    1st. That there was no such evidence of Knapp’s indorsement of the note as to warrant a recovery.
    2d. That the addition of Mrs. Miller’s name, after the negotiation and delivery of the note to Knapp, without the knowledge or consent of John K., was a material alteration of the note and avoided it.

      M. M. Waters, for the plaintiff,
    cited Brownell v. Winnie (29 N. Y., 400; 2 Am. Rep., 598); Flint v. Craig (59 Barb., 319); Cromwell v. Hewitt (40 N. Y., 491).

      0. Porter, for the plaintiff,
    cited Lewis v. Payne (8 Cow., 71) ; Nunny v. Colton (1 Hawks., 222); Jewitt v. Hodgden (3 Green., 103); Irving v. Turnpike (2 Penn., 466).
   Boaedman, J.:

The evidence of Knapp’s indorsement was sufficient to establish the fact. In any event, it could only have been error to have refused to submit that question to the jury, upon the request by the defendant. Ho such request was specially made by the defendant. The testimony of St. John was competent, and tended to establish Knapp’s indorsement. It was also proved by the defendant, that Sprague bought the note of Knapp. All the evidence in the case went to establish the genuineness of the indorsement, and no evidence was given, showing, or tending to show, that it was not genuine. ■ Hnder such circumstances, the court was justified in treating the proof as sufficient. But if not, the neglect of the defendant to request the submission of that specific question to the jury, was a waiver of the objection.

A more serious question arises upon the alteration of the note, by adding the name of Mrs. Miller, after its delivery to Knapp, without the knowledge of her son. The authorities are in conflict upon, this subject. In Chappell v. Spencer, and in McVean v. Scott, such an alteration is held to be material, and to avoid the note, as to the original maker. But, in Brownell v. Winnie, and McCaughey v Smith, such an alteration has been held by the Court of Appeals, not to be material, or to affect the validity of the note. It is true that the original maker of the note did not defend, in Brownell v. Winnie, and that the person, making the alteration, alone defended, so that the precise question was not before the court. The case of McCaughey v. Smith, has been severely criticised in McVean v. Scott, and declared to be bad law. Still, in the face of two such distinct declarations of the law of this case by the Court of Appeals, I do not feel at liberty to say the alteration under consideration was material. This note was a several note, and it may well be said, the liability of John K. is not increased or varied by the addition of his mother’s name as an additional maker, any more than it would have been, if she had guaranteed the payment of the note. Had the form of the signature, as set up in the complaint, to wit: “ John K. Miller and Parmelia Miller,” been established upon the trial, a different •question might have been raised; because, such a signature would import, in law, a joint, and not a several liability. But the case shows only the several signatures of the two defendants, by which a several, and not a joint liability is created. Without attempting to review the authorities, I feel bound to recognize and follow the cases cited in the Court of Appeals.

The motion for a new trial is therefore denied, and judgment ordered for the plaintiff upon the verdict, with costs.

Present—Miller, P. J., Boardmajst and James,- JJ.

Jamjbs, J., dissented as to the sufficiency of the evidence to establish the indorsement of -the note by Knapp, but concurred with Boabdmajst, J., as to the effect of the alteration of the note. .

Judgment ordered for the plaintiff, with costs.

       Bidwell v. Lament, 17 How., 357.

       23 Barb., 584.

       46 Barb., 379.

       29 N. Y., 400.

       27 N. Y., 39.

       46 Barb., 387.


author: Boabdmab, J.: Miller, P. J.

text:
    CORNELIUS VAN RENSSELAER, Respondent, v. THE ALBANY AND STOCKBRIDGE RAILROAD COMPANY, Appellant.

      Easemmt—what constitutes—may he imposed hy covenant—Negligence.

    The owner in fee of land may impose upon it any burden, however injurious or destructive, not inconsistent with his general right of ownership, if such burden be not in violation of public policy and do not injuriously affect the rights or property of others. And where the nature of the charge is such that it may be made by grant, it may be equally imposed by covenant.
    In 1859, the plaintiff’s father was the owner of land, through which the defendant’s road was built, on the side of a steep hill. In that year, the embankment for the road slipped out upon the adjoining land, causing damage which was settled between the plaintiff’s father and the defendant. At the time of the settlement, a writing under seal, executed by the plaintiff’s father, was given to the defendant, by which he released the defendant from all claims for the damage already occasioned, and agreed that, if in consequence of the peculiar construction of the embankment, or of the nature of the soil at the point where the embankment joined his land, land-slides should thereafter occur, that he, his heirs and legal representatives, should consider the money then paid, as compensation in full for all past and future damage, and that the instrument so signed should be a bar to all future claims.
    In 1869, another land-slide occurred, occasioning damage to the land, which had descended to the plaintiff, as heir-at-law of his father, to recover for which damage, this action was brought. Held, that by virtue of the covenant contained in the agreement, the defendant acquired an easement in the land, which was bound thereby in the hands of the plaintiff; and that, as the negligence of the defendant, if any, was not willful or permitted with any hostile or offensive purpose, the plaintiff could not recover.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of referees.
    In 1859, the father of the plaintiff was the owner of land, through which defendant’s road was built, on a steep hill-side. The embankment for the road having slipped down upon the adjoining land, causing damage, such damage was settled between plaintiff’s father and the defendant, in January, 1859, and a writing given hy the said plaintiff’s father to defendant, under seal, first, releasing and discharging the defendant from such damage, and second, as follows: “I do also, for the same consideration, and for myself, executors, administrators and assigns, hereby agree with said corporation, that if in consequence of the peculiar construction of said embankment or of the nature of the soil at the point where said embankment adjoins my land, land-slides shall hereafter occur from said embankment, whereby earth or other material shall be deposited on my lot, that I will make no claim for damages therefor, and that I will, and my heirs and legal representatives shall consider the money this day paid by said corporation, compensation in full for all past and all future damage to my land, which has happened, or may hereafter occur in consequence of said embankment, and this instrument, a bar to all future claim.” Plaintiff, upon the death of his father, succeeded to the title to his lands, by inheritance, in 1868. In 1869, during a heavy storm, another slide from such embankment came down upon plaintiff’s land, to his damage, for which this action was brought. The referees found that the embankment was improperly and negligently constructed, and that the injury complained of, was caused by the carelessness of the defendant.

      George W. Miller, for the appellant.

      George 0. Genet, for the respondent.
   Boabdmab, J.:

If the instrument executed by plaintiff’s father, bars the plaintiff’s right of action, it will not become necessary to consider the question of negligence raised upon the hearing. It can scarcely be denied, that such a burden as that contemplated in the contract, can be imposed by grant upon one’s realty. It is very like a grant of the right of drip from eaves ; or the right to flood lands or to discharge water, with or without refuse matter, upon lands of another; or the right of support to the soil or buildings of one party, by the property of another; or the right to change the course, impede the flow, or increase or diminish the quantity of water in a stream through adjoining lands. All these are familiar cases of easements, known and recognized by the law. The right to maintain such embankment, to the detriment or damage of the adjacent land, was a right which plaintiff’s father could convey to defendant, and, by such conveyance, deprive himself and his heir of any recovery for damages contemplated by the parties. Such a grant would have created an easement upon plaintiff’s land in favor of the defendant. It relates directly to the land; the right is a burden upon it. The owner may thereby be deprived of its full use. The land may be incumbered in a manner inconsistent with the general right of ownership in the plaintiff. Nor is it, in this view, inconsistent with the case of Keppell v. Bailey. In that case, the covenant was held to be personal, not running with the land, nor binding assignees. That case lias not been overruled as a decision of the questions before the court; but certain dieta of the lord chancellor have been condemned and rejected. The subject is very fully considered in Spencer’s Case and the notes thereto.

It results from the cases, that the owner in fee of land, may impose upon it any burden, however injurious or destructive, not inconsistent with his general right of ownership, if such burden is not in violation of public policy, and does not injuriously affect the rights or property of others.

But the instrument under consideration is not, in terms, a grant or conveyance, but rather an agreement or covenant not to sue for any damages thereafter occurring ; in effect giving to defendant the right to the use of plaintiff’s land, as and when it should become necessary, by reason of defects in the building up and sustaining of its track and embankment. Upon such a construction of the contract, no reason is apparent why the burden should not be imposed by the covenant, since, by its nature, it could have been given by a grant.

If we are right in holding that such a servitude can be imposed upon land, and that, when the nature of the charge is such that it might have been made by grant, it may be equally imposed by covenant, it follows that the covenant of plaintiff’s father runs with the land, and subjects the same in the hands of his son, to all the consequences that would exist against the father. Such would he the case even against an assignee.

The idea of a perpetuity in a vested right to maintain a negligent structure, is well answered by the lord chancellor, in Keppell v. Bailey, wherein he shows that the principle of a perpetuity is not involved in the case.

Nor is there anything in the novelty of such an easement, as suggested in the opinion of the referees, which should lead to its rejection. That siich charges upon land have hitherto been unknown to the law, or unnecessary in experience, cannot destroy the power of creation. The arts and sciences are constantly developing new industries and new necessities for subjecting realty and population to strange burdens of a novel character. It is the province of the law to adapt itself to such wants. In this particular case, it may be, and probably is, a necessity .that the defendant’s roadway should pass along that side-hill; that the formation of such hill is such that an embankment cannot be built, except at extravagant expense, which shall be free from the chance of sliding down upon the lower land; that thus the defendant needed to own such lower lands, or else the right to subject them to the possible injury from land-slides from said embankment. What more reasonable than that defendant should desire to acquire such right, thus preventing plaintiff or his ancestor, from making valuable improvements upon the lands liable to injury ? What more natural than that the plaintiff’s father should be willing to accept óf a compensation for such risk, agreed upon between the parties, and still own and enjoy the ordinary use and profits to be derived therefrom % Such seems to have been the conduct of the parties. Though it may have become an unfortunate contract for the plaintiff, it cannot alter the result. The extent of the inj ury may be due to an indiscreet use and improvement of the lands, in view of their exposure— a use not contemplated when the contract was made.

Entertaining such views, after a careful examination and study of the law applicable to the case, it is unnecessary to discuss the subject of negligence as developed by. the evidence. It is not claimed that such negligence, if it existed, was willful or permitted with any hostile or offensive purpose, It could not, therefore, furnish a ground for action, in spite of, and notwithstanding the covenant.

If the views taken of this contract, he not correct, the result must follow, that the defendant acquired thereby nothing but a release and discharge, arising from the damages caused in 1859. Such a construction would be a plain contradiction of the language and apparent intent of the parties to the agreement. It would leave the plaintiff the same right to recover for ordinary neglect that he'would have in the absence of the agreement. The defendant, by the agreement and the consideration paid, has acquired no right which the law did not give without such an agreement.

Believing that this contract had a purpose beyond the mere settlement of the damages of 1859 ; that such purpose is justified in the law, as proper and legal; and that the effect of such contract is to exempt the defendant from liability for ordinary or casual negligence, I am of the opinion that the judgment should be reversed, and a new trial granted, costs to abide the event.

Miller, P. J.

(dissenting) :

The question in this case is, whether the instrument, executed by the father of the plaintiff, on the 20th of January, 1869, was a bar to a recovery.

By the instrument referred to, the plaintiff’s father released all claims for damages, by reason of any land-slides from the embankment of the defendant, and agreed that if any land-slides should afterward occur, that he would make no claim for damages; and that he and his heirs and representatives would consider the money, paid by the defendant at the time of the execution of the agreement, in full for all damages to his land, and a bar to all future claim. I am inclined to think that the instrument, executed by the plaintiff’s father, was not of such a character as to prevent a recovery under the circumstances presented, and I am brought to this conclusion for the following reasons:

First. There was evidence upon the trial to show, and the referees found, that there was negligence on the part of the defendant, in allowing the embankment to remain in the condition in which it was at the time of the injury complained of, and had been, ever since the agreement was executed. Under ordinary circumstances, there would be no question that the defendant would be liable for negligence, even although the right to claim damages had been discharged. The instrument, I think, does not relieve the defendant from such liability. Although it provides against damages in consequence of the peculiar construction of said embankment, or the nature of the soil, it must be held, I think, to require of the defendant, the exercise of reasonable care to prevent its sliding, and imposes upon the defendant the duty of guarding against negligence and "carelessness. Even if it may be considered as excusing the construction, at the time when the agreement was executed, it cannot protect the defendant, as the proof shows that after the writing was executed, no steps were taken to protect the embankment, the ditches being filled up, and the water being allowed to collect, so as to affect the soil and cause it to slide.

Second. Even if the right claimed by the defendant may be considered as analogous to an easement, which I very much doubt, as no such easements have ever yet been recognized in land, I am inclined to think that the writing does not contain language which creates an easement. It does not, in appropriate phraseology, grant the privilege of allowing the embankment to slide on the land, or create a servitude in regard to the land for any such purpose. It only provides for exemption from the payment of further damages, which is a personal covenant and nothing more. .

Third. If an easement was properly created with a covenant which bound the heirs and the land itself, it might be regarded as a covenant running with the land, and binding on the defendant for that reason: But there are no terms employed, which invest it with any such character. Although it may bind the party or his lawful representatives, when a proper action is brought, it cannot, I think, be obligatory upon the owner of the land, as such. If the owner was a stranger without notice, and there was no instrument or record showing such a lien upon the land, clearly, he would not be bound; and, in principle, it seems to me that the heir-at-law takes the land without any other incumbrances upon it, except such as appear from instruments which show on their face an intent to bind the land, and clearly do so bind it.

Fourth. I am inclined to think that a release of damages before they have occurred, is not binding, because it is based upon some event which may never happen, and therefore is not a promise for a valid consideration. It is in mere anticipation of some possible future injury, which is a mere naked possibility which can never be the subject of a release.

For the reasons stated, I am of the opinion that the judgment was right and should be affirmed, with costs.

Present—Miller, P. J., Bocees and Boardman, JJ.

Miller, P. J., dissented.

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

       Bushnell v. Proprietors, etc., 31 Conn., 150.

       2 Mylne & Keene, 517.

       1 Sm. Lead. Cases part 1, pp. 115, 129 ; Rowbotham v. Wilson, 8 Ell. & B., 123 ; 92 Eng. C. L. R., 122; Gibert v. Peteler, 38 Barb., 488; affirmed, after new trial, in Court of Appeals, 38 N. Y., 165.

       Carr v. Lowry, 3 Casey, 257; Barrow v. Richard, 8 Paige, 351; Gibert v. Peteler, and Rowbottom v. Wilson, ante; 1 Smith Lead. Cases, 144, 165, 166, 178, 179, and cases there cited.

       Holmes v. Buckley, 1 Eq. Cases, p. 27, F. 4; Norman v. Wells, 17 Wend., 136.

         Ante.

       Edwards v. Varick, 5 Denio, 691.


author: Boajbdmait, J.:

text:
    JOHN POWELL, Plaintiff, v. HAMILTON S. PRESTON, Defendant.

      Vendor and vendee — Conditional sede — when made in good faith, condition is sustained as against creditors of vendee.

    . A conditional sale of goods,, under which the title to those sold ,and to such other goods as might he purchased and added to the stock hy the vendee, was to he in the vendor, until certain moneys should he paid hy the vendee, will not protect the sheriff for levying upon the goods under an execution against the vendee, when, before such levy, the vendor had taken possession of both the goods sold (to which, at the time of sale, he had a good title), and of those purchased by the vendee since the sale.
    In an action brought by the vendor against the sheriff for taking and selling such goods, the jury having, found that the vendor’s possession was not fraudulent or in had faith, hold, that he was entitled to recover their value from the sheriff.

      Ludden v. Hazen (31 Barb., 650) and Griswold v. Sheldon (4 N. Y., 581) distinguished.

      Ballard v. Burgett (40 N. Y., 314), Austin v. Dye (46 N. Y., 500) followed.
    The plaintiff being the owner of a stock of goods in a store, sold the same to his son, E. H. Powell, conditionally; that is, plaintiff was to retain the title to the goods until they were paid for, and until certain debts due third parties were paid. It was subsequently agreed between them, that all future purchases r ■ oods by the son, should belong to the father, upon the same cc- mitions, and that the son might reduce the stock and notes, and accounts, by paying to plaintiff a proportional amount of his claims against the son. The agreements by which such a condition of affairs existed, were made at different times between January and June, 1870, and, under such agreements, the son had been in possession of the goods, buying and selling, and so continued until November 1st, 1870. At this time, the plaintiff, by his agents, and in the absence of his son, took possession of the store and goods, and afterward, with the aid of the son, inventoried them, and continued to retain possession until the 20th of November, 1870, when the same were levied upon by defendant, as sheriff, under executions issued upon judgments against the son, E. H. Powell. By virtue of such executions, the goods were afterward sold. The plaintiff brought this action against the sheriff for taking and selling such goods, and had a verdict for their value, at the circuit. The exceptions were ordered heard in the first instance at the General Term.

      William Youmcms, Jr., for the plaintiff.

      O. H. Bell, for the defendant.
   Boajbdmait, J.:

If Edward H. Powell had remained in the possession of the goods, until the levy by defendant had been made, the cases of Ludden v. Hazen, and Griswold v. Sheldon, would have been authorities in point, and perhaps conclusive in favor of defendant. They are distinguished from the case under consideration, in that Edward H. Powell was not in possession of the property, at the time of the levy. The plaintiff had possession of it under a claim of ownership. If he was in fact the owner, the defendant was a trespasser, in levying and selling. But if plaintiff was not the owner, or his title was fraudulent an oid as to the creditors of Edward H., the defendant was justified in his seizure and sale.

It is not denied that Edward H. had not paid the plaintiff the purchase-price of the goods, nor that plaintiff sold the goods to Edtv..( H., conditionally, the title to remain in plaintiff until the purchase-price should be fully paid. Such a sale is sanctioned by Ballard v. Burgett, and Austin v. Dye. There was nothing, therefore, in that portion of the contract, which would give to the creditors, rights superior to those of the plaintiff. But the contract between the plaintiff and his son, contemplated additional purchases by the son, and additions, to the stock of goods, which were to become the property of the plaintiff as fast as purchased, upon like conditions. As to such new purchases, the rights of the creditors of Edward EL, would be superior to the rights of the plaintiff, so long as the goods remained in the possession, and under the control of Edward H. But the plaintiff, under his contract, took possession of all the goods in his son’s possession, nearly three weeks before the levy, and such act was acquiesced in by the son, who aided in taking an inventory of the property, and recognized the right of the plaintiff to hold the goods under the contract. In the absence of fraud, •such conduct would vest the plaintiff with the title to the goods, and would deprive Edward H. and his creditors of any claim upon them in plaintiff’s hands. The possession of plaintiff, under a claim of ownership, was therefore an important fact in this case, by which all questions were disposed of, except only, whether such possession and ownership were in bad faith, and fraudulent, as to the creditors of Edward H. That question was fully and fairly submitted to the jury by the learned judge, and the verdict has established that plaintiff’s possession was not fraudulent, or in bad faith.

It does not seem material, how plaintiff obtained possession of the goods, so long as the contracts between himself and his son gave him the right of possession. The possession, if rightful by virtue of the contracts, was effectual as against the son or any one claiming under or through him, however acquired. The same is true of the son’s acquiescence. He could not recover the goods of his father, because the father had the legal right to the possession, under the contracts with the son. An action, founded upon the manner in which the father gained possession, or the want of acquiescence by the son, must, for the reasons stated, have failed.

The plaintiff’s title and possession are held to be honest and free from fraud, by the verdict of the jury, as against the creditors of Edward II. That being so, no attack can be sustained by the creditors against the plaintiff, except upon proof showing that the plaintiff had no title, and that the title was still in his son. We have seen that the contracts between the plaintiff and his son, gave plaintiff the title to these goods, which was made effectual, in the absence of fraud, by reducing them to possession.

Many exceptions are taken in the case, but all of them cluster around, and are disposed of by, the principles above stated..

Believing that no error was committed upon the trial, to the prejudice of the defendant, the verdict must be sustained.

The motion for a new trial is therefore denied, and judgment ordered for the plaintiff on the verdict, with costs.

Present—Miller, P. J., Boardman and James, JJ.

Motion for new trial denied. Judgment ordered for the plaintiff on the verdict, with costs.

       31 Barb., 650.

       4 N. Y., 581.

       40 N. Y., 314.

       46 N. Y., 500.