author: Martin, P. J.:

text:
    EPHRAIM D. MOWRY, Respondent, v. AGRICULTURAL INSURANCE COMPANY, Appellant, Impleaded with Another, Defendant.

      Insurance — oral application therefor, not affected by a subsequent unsigned application — knowledge of the agent is that of the insurance company — a mortgage for past and future advances — a new mortgage given in settlement is not a further incumbrance:

    F. D. Mowry mortgaged his farm to R. L. Ingersoll for $400, nominally, but the mortgage was, in fact, to be a security for all present and future indebtedness of Mowry to Ingersoll. The agent of an insurance company, having solicited the insurance required to be given by this mortgage, Mowry stated truly to him, in reply to the question as to incumbrances, that there was a first mortgage to one Dilts and a second mortgage to Ingersoll upon the premises, but no written application to the company for insurance was signed by Mowry.
    The agent made out an application, not signed by any one, in which the question: “How much is the real estate incumbered?” wasanswered, “None.” Thepolicy provided that it should be void if the incumbrances were not stated in the application or indorsed in writing upon the policy.
    More than a year later, but while the policy was in force, Mowry and Ingersoll had an accounting, and for the sum due the latter by the former he gave a new mortgage, to secure payment of the sum of $570, to the giving of which the company did not consent.
    A fire having occurred an action was brought on the policy for the recovery of the loss resulting therefrom.

      Meld, that the policy was issued upon the oral application of Mowry, and that he was not bound by the written misstatements made by the agent in the unsigned application prepared by the agent.
    That, in the preparation of the written application, the agent was acting for the company, and not for the insured.
    That knowledge by the agent of the incumbrances was the knowledge of the company; and that with such knowledge it could not defeat the policy, because a fact was not stated in the application which the company knew to exist.
    That as the second mortgage given to Ingersoll merely settled the amount due, ' under the provision which had been made for present debts and future advances existing in the first mortgage, it did not increasp the incumbrance or the hazard.
    That, therefore, the property had not become “incumbered by mortgage” after ■ the issuing of the policy, and that the provision requiring the consent of the company to a further incumbrance did not apply.
    Appeal by the defendant, the Agricultural Insurance Company, from a judgment of the Supreme Court, entered, after a trial before a referee, in the office of the clerk of the county of Oswego on the 9tli day of January, 1891, on which, trial a recovery was directed in favor of the plaintiff for $2,000, with interest and costs, with a provision that Susannah M. Ingersoll, as executrix of Robert L. Ingersoll, deceased, had an equitable lien upon said sum for $Y88.31, with interest.
    On and prior to the 11th day of March, 18J9, the plaintiff was the owner of certain premises situated. in the town of Richland, Oswego county, N. Y. On that day he duly executed, acknowledged and delivered to Robert L. Ingersoll a mortgage thereon, the consideration named therein being the sum of $100. The condition of said mortgage was as follows: “This grant is intended as security for the payment of any and all indebtedness or liabilities of every nature, kind or description which the said Ephraim D. Mowry has become liable to pay, or may hereafter become liable to pay or be owing to said Robert L. Ingersoll.” The mortgage also contained a provision that the mortgagor should keep the building erected, or to be erected, upon the lands, insured against loss or damage by fire. This mortgage was recorded on the twentieth of March, and was intended as a continuing obligation and security as between the parties thereto.
    On the 11th of July, 1883, the plaintiff was erecting a dwelling-house on the premises, which was substantially enclosed, when one Stowell, who was the duly commissioned and authorized agent of the appellant, having power to receive proposals for insurance on farm buildings and residences, to collect premiums, consent to assignment of policies and attend to the business of his agency in accordance with the rules and regulations of the company, with such instructions as might be given by its officers, came to the premises of the plaintiff and solicited the insurance upon the building being erected thereon. At that time the plaintiff, in answer to the question propounded to him by the defendant’s agent, “ How much is the real estate encumbered ? ” replied, in substance, that there was at that time a mortgage on the premises to one Dilts for $200, and also á mortgage to one Robert L. Ingersoll to secure a running account and advances, the amount of which was unknown at that time, and could not be ascertained until the plaintiff should have a settlement with Ingersoll. The plaintiff thus fairly informed the defendant’s agent of the existence of the mortgage which' he had given, to Iugersoll, and that it was intended as a continuing security for such past and future indebtedness as then existed or should be subsequently created.
    No written application was made or signed by the plaintiff. But afterwards, and not in the presence of the plaintiff or with his knowledge, Stowell made out a written application for insurance in favor of the plaintiff to the amount of $1,000 on his unfinished building, and sent the same to the defendant. It was in the handwriting. of the company’s agent, but not signed either by the plaintiff or by such agent, nor did it purport to be signed by either. This application was forwarded to the defendant’s home office by its agent Stowell, and is the application referred to in the policy. In the application, the answer to the question, “ ITow much is the real estate encumbered ? ” was incorrectly stated, and answered as “ None.” After the defendant had received this application, and on the 11th of July, 1883, it issued the policy in suit, whereby, in consideration of eight dollars and fifty cents premium, it insured the plaintiff in the sum of $1,000 on his dwelling-house for the term of three years from the 11th of July, 1883. The premium was paid by Stowell, and by him delivered to the insurance company, and the policy was subsequently delivered to the plaintiff by the company, with the name of Stowell as its agent, at Pulaski, N. Y., indorsed thereon by it.
    Among others, the policy contained the following provisions: “ This policy of insurance is based upon a written application on file in the company’s office, purporting to be signed by the applicant or by his authority, and all statements contained therein are warranties on the part of the assured. * * * If the property, whether real or personal, or any part thereof, shall be encumbered by mortgage, judgment or otherwise, it must be so represented to the company in the application or endorsed in writing upon this policy, otherwise this entire policy and every part thereof shall be void. * * * If the property, either real or personal, or any part thereof, shall become encumbered by mortgage, judgment or otherwise, * * * then, and in every such case, and in either of said events, this entire policy and every part thereof shall be null and void, unless the written consent of the company at the home office is obtained. * * * No agent is permitted to give the consent, of tlie company in any other case required by the provisions of this policy or to waive any stipulation or condition contained therein, but in all cases where the consent of the company is reauired by this policy, other than consent to the assignment of the policy, such consent must be obtained in writing and at the home office; and no statement made or information given by the assured prior to the issuing of this policy to any agent or solicitor of this company shall be deemed to be made to this company unless the same is reduced to writing and incorporated in the application hereinbefore mentioned or endorsed upon this policy. * * * It is a part of this contract that any person, other than the assured, who may have secured this insurance to be taken by this company, shall be deemed to be the agent of the assured, and not of this company, under any circumstances whatever or in any statement or transaction relating to this insurance. * * * This policy is not assignable without the written consent of the company or its agent endorsed thereon or annexed thereto; and any assignment without such consent will render the policy null and void.”
    Subsequent to the issuing of this policy, and before the loss under it, Stowell, as agent of the defendant, at the request of the plaintiff increased the amount of insurance on said building and other property, issued and delivered to the plaintiff an instrument, partly written and partly printed, which was as follows:
    “ Secretary Agricultural Insurance Compa/ny, Watertown, JST. 7.:

    [This blank is never to be given to the insured.]
    Please consent to the following entry in policy No. 952; agency at Pulaski, N. Y.; name, E. D. Mo wry; date of policy, July 11, 1883; date of entry, January 23, 1884 There is added to this policy $300 on dwelling-house; $100 on. furniture, provisions and family wearing apparel, printed books, pictures and silver and plated ware, and sewing machine therein; $100 on organ; barn, $300; produce $100; wagons, carriages, harnesses, cutters, robes therein, $200 N. S. Stowell, Agent. Extra premium, $9.92.”
    The extra premium of nine dollars and ninety-two cents was paid to the agent Stowell by the plaintiff, and by Stowell transmitted to the defendant. The foregoing instrument was the only evidence the plaintiff ever had of such increased insurance. It was' issued to the plaintiff by Stowell with the knowledge and consent of the defendant, and for the purpose of increasing the amount of such insurance. It was in the handwriting and signed by Stowell as such agent. Stowell subsequently, and after the fire, assumed to cancel a portion of said increased insurance by drawing a pen or pencil through the following words and figures contained in the paper evidencing such increased insurance: “ B. No. 1, $300; produce $100; wagons, carriages, harnesses, cutters, robes therein, $200.”
    On or about the 21st day of August, 1884, the plaintiff had an accounting and settlement with said Ingersoll for the matters included in and intended to be secured by said mortgage, which included transactions between the parties occurring after as well as before its execution and delivery. Upon such accounting there was found to be due Ingersoll the sum of $570. The plaintiff thereupon and on the 21st day of August, 1884, executed and delivered to Ingersoll his bond in the penal sum of $1,140, conditioned to pay the sum of $570, in the manner therein mentioned, and he and his then wife Polly S. Mowry executed and delivered to Ingersoll a mortgage upon the same premises described in the mortgage formerly given, conditioned for the payment of -the sum of $570, as follows: “ Five hundred and seventy dollars to be paid on the first day of December next, with interest, or at least three hundred dollars of it and interest, and the balance in one year from the date hereof.” This mortgage was recorded in the clerk’s office of Oswego county on the 26th of August, 1884. Both the bond and mortgage contained the- usual insurance clause and were at the time of the trial wholly unpaid. Intermediate the execution and delivery of the mortgage first mentioned and the execution and delivery of the bond and second mortgage, Helen H. Mowry, the plaintiff’s wife, who joined in the first mortgage, died, and plaintiff intermarried with Polly S. Mowry.
    The appellant had no notice of the execution and delivery of the bond and mortgage last given, and gave no consent thereto as provided in its policy. The plaintiff gave no notice thereof to the appellant, but did notify the agent Stowell that he intended to give a mortgage on the premises to Ingersoll and desired him to notify the company when the mortgage was placed thereon and obtain its consent thereto. The agent directed the plaintiff to bring or send him the policy so that he might send it to the company to have the necessary consent indorsed, but the plaintiff neglected to send it, and no consent, written or otherwise, was ever given or indorsed upon the policy.
    On or about the 21st of August, 1884, the appellant, through its agent Stowell, by an instrument in writing dated on that day and signed by him, consented to the $200 mortgage, with loss, if any, payable to Frank Dilts, as his interest might appear. On the 18th of October, 1884, a fire occurred by which the' property insured was substantially destroyed, without fault on the part of the plaintiff. The value of the dwelling-house was the sum of $2,000, and the personal property so destroyed the sum of $713.25. Due notice of loss and proofs thereof were furnished to the defendant by the plaintiff, which were satisfactory. No question was made as to the sufficiency of the plaintiff’s notice or proofs of loss.
    The foregoing facts were found by the referee, who held, as matter of law: That the plaintiff was not bound by the errors, omissions or misstatements contained in the unsigned application forwarded to the appellant by its agent; that in all that was done by Stowell in relation to said policy he acted as the agent of the appellant, and not for the plaintiff, and that any provisions in the policy to the contrary were waived ; that the plaintiff was not bound by any of the stipulations or agreements contained in such application, but that the policy was based upon the oral application by plaintiff to the agent, which contained ample notice of the existence of the first mortgage, and that the company had, by issuing the policy, in fact, consented to and waived the written indorsement thereof upon the policy; that the defendant was legally bound by the oral application and the statements then made, and the policy issued thereon was valid; that the knowledge of the agent was imputable to the company, and it was bound thereby; that the company having such knowledge of the statements made by the plaintiff on application for such policy was estopped after the fire from setting up the existence of either the first or second mortgage as a forfeiture of the policy to avoid payment of the plaintiff’s loss ; that the mortgage first mentioned was given as a continuing security for the payment of all liabilities and debts then existing or which might arise between the parties, and the second mortgage was given after a settlement between the parties of their accounts, which were secured to be paid by the first; that the giving of the second mortgage superseded the first and was a continuation thereof given to secure the same indebtedness, and that in contemplation of law the first and second mortgages were identical •, that the second mortgage did not further incumber, or create any new lien or incumbrance on, the property insured after the issuing of the policy; that the plaintiff was entitled to recover the amount of the policy and interest.
    The referee directed judgment against the appellant for the amount insured by its policy.

      A. H. Sawyer, for the appellant.

      AT. B. Smith, for the respondent.
   Martin, P. J.:

The facts as found by the referee were fully sustained by the evidence, and the only question presented is, whether his conclusions of law were justified by the facts as found.

As the case now stands, and as it was presented on the trial, the only real controversy between the parties is, whether the policy in suit was void because of the existence of the mortgages given by the plaintiff to Robert L. Ingersoll.

That the plaintiff had, before the policy was issued, executed and delivered to Ingersoll a mortgage as security for future as well as present indebtedness was clearly shown by the mortgage which was recorded, and was undisputed.

That such a mortgage stands as security for the liabilities of the mortgagor, whether existing when it was given or created subsequently, seems to be well settled; and where a mortgage is given as security for future advances, and it is so stated therein, the sum named as the consideration is of no importance. (Robinson v. Williams, 22 N. Y., 380; Miller v. Lockwood, 32 id., 293; Brown v. Kiefer, 71 id., 610.)

Therefore, when the policy in suit was issued, Ingersoll had a mortgage that was a valid incumbrance upon the property insured, not only for any indebtedness that then existed, but for such future indebtedness to Ingersoll as might thereafter be incurred by the plaintiff. The appellant’s agent was fully informed of the existence of this incumbrance, and of its nature, extent and purpose. Possessing such information, he forwarded to the appellant an application for the policy in suit, in which he stated that there were no incumbrances upon the property. The application was in the handwriting of the company’s agent, which must have been known to its officers, and did not purport to be signed by any one. Upon this unsigned application the company issued the policy in suit.

It is now claimed by the company that the existence of that incumbrance when the policy was issued rendered it void under the conditions contained therein, and that the plaintiff should not recover thereon. That under the conditions of the policy it would have been void by reason of the existence of that mortgage, if the plaintiff had made the written application introduced in evidence in this case, or if he had not informed the company’s agent of the existence of such mortgage, there can be but little doubt. But that was not the case. Here there was no written application by the plaintiff. It was made by the defendant’s agent. It was incorrect, and made by the agent with a full knowledge of the facts. It would seem that under such circumstances the appellant could not justly claim that its policy should be avoided because the incumbrance was not stated in the application or indorsed on its policy.

A contract of insurance is not defeated by a misrepresentation contained in an application prepared by the agent of an insurance company in the name of the insured, but without his authority, and upon Avhich the company acted in issuing the policy. (Benninghoff v. Agricultural Ins. Co., 93 N. Y., 496; Sprague v. Holland, Purchase Ins. Co., 69 id., 128; Vilas v. N. Y. Central Ins. Co., 72 id., 590; Ames v. N. Y. Union Ins. Co., 14 id., 253.) So where an agent authorized to fill out an application in the name of the assured misstates the information given by the assured and, thereby misleads the company, the error of the agent cannot be imputed to the assured. Such misstatements, as between the parties, are to be regarded as those of the agent, and not of the assured, and consequently, would not avoid the policy. (Rowley v. Empire Ins. Co., 36 N. Y., 550; Bennett v. Agricultural Ins. Co., 106 id., 243.)

Another principle which seems to be established by the authorities in this State is that an insurance company cannot insist upon a condition declaring the contract to be void if a certain fact or sitúation exists, not represented to the company in. the application or indorsed on the policy, where the company or its authorized agent, at the time it was made, knew of the fact or situation which is relied upon to defeat the contract. (Van Schoick v. Niagara F. Ins. Co., 68 N. Y., 434; Richmond v. Niagara F. Ins. Co., 79 id., 230; Short v. Home Ins. Co., 90 id., 16.)

The doctrine of these cases is recognized in Sanders v. Cooper (115 N. Y., 279, 286), and the principles are there stated by Judge Andrews in substantially the language here employed.

The evidence which discloses that the plaintiff neither made nor authorized any written application for the policy in suit, that the application was made by and was in the handwriting of the defendant’s agent, that when the policy was issued the company indorsed thereon the name of Stowell as its agent, thereby representing and assuring the plaintiff that Stowell was authorized to represent the company in matters pertaining to the policy, was, we think, sufficient to justify the referee in holding that the knowledge of the agent was imputable to the company. (Partridge v. Commercial F. Ins. Co., 17 Hun, 95; Broadhead v. Lycoming Ins. Co., 14 id., 452; Chase v. People's F. Ins. Co., id., 456; Vanderhoef v. Agricultural Ins. Co., 46 id., 333; Smith v. Home Ins. Co., 47 id., 30; Van Schoick v. Niagara F. Ins. Co., 68 N. Y., 434; Sprague v. Holland Purchase Ins. Co., 69 id., 128; Whited v. Germania F. Ins. Co., 76 id., 415.)

An application of the principles of law stated, to the facts in this case, would seem to justify the referee’s holding that the existence of the first mortgage did not render the policy void. This leads us to consider the effect upon the policy of the second mortgage given by the plaintiff to Ingersoll. In examining this question it should be remembered that the mortgage first given was a continuing security intended to cover all the indebtedness that might exist between the parties, so that it, in fact, covered all the indebtedness which was secured by the second mortgage. It is true the plaintiff’s second wife joined in this mortgage, but her right of dower was subject to the first mortgage, so that there was no actual increase of security, and consequently no added incumbrance.

Although the giving of the second mortgage in no way increased the incumbrance upon the property insured, still the appellant contends that it rendered the policy void. To sustain that contention, it relies upon the condition in the policy which provides that “if the property * * * shall become incumbered by mortgage, judgment or otherwise * * * this entire policy and every part thereof shall be null and void unless the written consent of the company at the home office is obtained.” Thus, the question is presented whether the giving of the second mortgage was an incumbrance of the property insured within the intent and meaning of that provision. As we have already seen, it in no way increased the amount of the incumbrance thereon. It at most only settled the amount. The manifest purpose of that condition in the policy was to prevent the assured from incumbering the property, thereby reducing his interest therein, and thus increasing the hazard. As there was in this case no increase or addition to the incumbrance? the interest of the insured in the property was in no way reduced by this second mortgage, and was not within the purpose of the provision.

"We are of the opinion that, under the circumstances developed by the evidence, and upon the facts as found by the referee, it was properly held that the execution and delivery of the second mortgage to Ingersoll did not create such an incumbrance upon the property insured as rendered the policy void, although the written consent of the company was not obtained. (Russell v. Cedar Rapids Ins. Co., 11 Iowa, 69.) If these conclusions are correct, it follows that the judgment should be affirmed, as we have examined all the exceptions to which our attention has been called by the appellant, but have found none that would justify a reversal of the judgment.

Judgment must be affirmed, with costs.

Merwin, J., concurred.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Martin, J.:

license: Public Domain

text:
    LUCINDA WOODARD, Appellant, v. WILLIAM J. FOSTER, Respondent.

      Evidence — contract in part only in writing — a reservation of a life estate canrnt be established by parol as against a deed in fee.

    William J. Foster conveyed certain premises by deed to the husband of Lucinda Woodard, who conveyed them to his wife. In an action of ejectment brought by Lucinda Woodard, the wife, to obtain possession of the premises, Foster was allowed to prove that at the time he conveyed to the husband the parties agreed that Foster should have the use of the premises for life.

      Held, that the admission of this evidence was improper.
    That the exception to the general rule which admits parol evidence, where the original contract is entire and by parol, and a part only has been reduced to writing, could only prevail where the evidence was consistent with the written instrument, that it was improper where the evidence varied or contradicted the writing.
    Appeal by the plaintiff Lucinda Woodard from a judgment of the Supreme Court, entered in the office of the clerk of the county of Cortland on the 2d day of June, 1891, dismissing the complaint, with costs, after a trial before a referee.

      Jerome Squires and W. G. Crombie, for the appellant.

      George B. Jones and Riley Ghamplain, for the respondent.
   Martin, J.:

An important, if not the controlling, question in this case is, whether the referee properly admitted parol evidence to show that, before, and at the time of the delivery of the deed from the defendant to plaintiff’s husband, it was agreed by the parties that the defendant should retain the use of the premises during his life. Although this question is controlled by the rules of evidence, yet its solution involves a substantial determination of the controversy between the parties.

The rule invoked by the appellant is, that making parol evidence inadmissible to contradict or vary the terms of a written instrument. The existence of this rule cannot be disputed; but there are exceptions to it, and it is not always easy to determine whether the evidence is within the rule or falls under some of the exceptions.

In the case before us the plaintiff’s action was to recover the possession of certain real property to winch she claimed title under a deed from her husband, to whom the defendant had conveyed the premises in fee. The defense interposed, and which prevailed, was? that previous to and when the deed was executed and delivered, as a part consideration therefor, it was verbally agreed between the grantor and grantee that the former should have the use of the premises as long as he lived, and should pay the taxes thereon and keep them in repair, which he did up to the time of the trial.

The obvious result of the evidence introduced to establish this claimed defense, if given effect, was, to reduce the title conveyed by the defendant’s deed, and to carve out of an absolute title in fee simple a life estate in the grantor. Thus the question is presented whether parol evidence was admissible for that purpose. That it was inadmissible under the general rule, prohibiting the admission of parol contemporaneous evidence to contradict or vary the terms of a valid written instrument, there can be no doubt. It is, however, contended that the evidence was admissible under an exception to the rule which permits parol evidence when the original contract is verbal and entire and a part only is reduced to writing. The existence of this exception must be recognized, but evidence is not admissible under it which contradicts or varies the written instrument; to be admissible it must be consistent with it. (Chapin v. Dobson, 78 N. Y., 74; Thomas v. Scutt, 127 id., 133, 138.) Therefore, the evidence was not admissible under that exception, because it was not consistent with, but in contradiction of, the deed.

There is no claim that the deed was to be given full effect, and the plaintiff’s grantor to execute to the defendant a valid lease. The evidence shows that that was not contemplated.

We are of the opinion that the evidence admitted fell within the condemnation of the general rule excluding parol evidence when, in effect, it would change or destroy the agreement between the parties which they had reduced to writing. This conclusion seems to be sustained by the authorities. (Wilson v. Deen, 74 N. Y., 531; Eighmie v. Taylor, 98 id., 288; Snowden v. Guion, 101 id., 458, 462; Long v. The Millerton Iron Co., 101 id., 638; Corse v. Peck, 102 id., 513; Sanders v. Cooper, 115 N. Y., 279; Gordon v. Niemann, 118 id., 152; Engelhorn v. Reitlinger, 122 id., 76; Read v. The Bank of Attica, 124 id., 671; Thomas v. Scutt, 127 id., 138.)

The case of Hutchins v. Hutchins (98 N. Y., 56) was very similar to this in many respects. In that case it was held that a reservation of a life estate to the grantor could not be proved by parol when there was a deed in fee.

The authorities cited are, we think, decisive of the question, and require that the judgment should be reversed.

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

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


author: Mekwin, J.:

text:
    AUGUSTUS E. DICKINSON, Appellant, v. EDMUND E. PRICE, Respondent.

      Mtoppel — res adjudicata —judgment by default in summary proceedings — its effect— a judgment which might ham been based on either of two grounds, when it may be claimed as an estoppel.

    In an action brought to recover damages for the alleged illegal discharge of Dickinson, a workman, by Price, his employer, it appeared that as an inducement to Dickinson to enter his service for a period of one year Price said he would let him have a certain house at seven dollars per month. After his discharge Dickinson continued to occupy the house until, about two months later, Price began summary proceedings against Dickinson, who put in an answer ■denying any indebtedness for rent, and further setting up the contract for services, .and that under it he was to have the use of the house for a year at seven dollars per month; that the contract had not expired; that he had been improperly dis■charged, and that Price had agreed to take his rent from Dickinson's earnings, which were payable weekly.
    Upon the trial Dickinson did not appear and Price took judgment by default for one month’s rent.
    Upon the trial of .an action brought to recover damages for the discharge of Dickinson the judgment entered in the summary proceedings was admitted in evidence and held to be a bar to the action.

      Held, that this was error.
    That the judgment by default in summary proceedings was conclusive only as to .those allegations which the petition therein stated as grounds for a recovery under the statute, and that the affirmative allegations of Dickinson in the answer to the petition did not widen the issue.
    That if the fact established by the judgment, that some rent was due, was to be taken to prove, inferentially, that Price had not broken the contract, and that, therefore, he had not discharged Dickinson improperly, the burden was upon Price to show affirmatively that the judgment went upon that ground, and not simply upon the ground that the contract did not apply to the rent.
    That as the present action and the summary proceedings were entirely different causes of action, one claiming an estoppel by the former judgment must show that the issuable fact was determined in the summary proceedings.
    Appeal by tbe plaintiff Augustus E. Dickinson from a judgment of tbe Onondaga Oounty Court, entered in tbe clerk’s office of said county on the 30th day of November, 1891, dismissing the complaint after a trial before the court and a jury; also from an order,, entered in said clerk’s office on the 1st day of December, 1891, denying a motion for a new trial made upon the minutes of the court.

      Wm. Lvncoln Ba/rnum, for the appellant.

      Homer Weston, for the respondent.
   Mekwin, J.:

The question in this case relates to the effect of a judgment, in favor of the defendant against the plaintiff, in summary proceedings to recover the possession of real property.

In the complaint in the present case, it is alleged that, on or about the 28th of March, 1890, it was mutually agreed between plaintiff and defendant that plaintiff should work for defendant at painting and paper-hanging for the term of one year from and after the 1st day of April, 1890, at the price of two dollars a day for each day, excluding Sundays, without loss of time, plaintiff to be paid weekly at the end of each week ; that plaintiff entered upon the work on or about April first, and worked for the defendant until October 18, 1890, when the defendant discharged him and refused to employ or allow him to work any longer; that plaintiff at divers times offered to work and complete his contract, and has been ready and willing to perform, but defendant has always refused to allow him to do so; that for fifty-four days of the time after October eighteenth, the plaintiff was unable procure work elsewhere, although he often tried to do so; that defendant was indebted to plaintiff under said contract for $100, for which judgment was demanded. The answer contained a general denial and also set up that defendant had good ground to discharge plaintiff, and that plaintiff had further employment. As a further defense, the summary proceedings hereinafter referred to were set up.

Upon the trial of the action it appeared from the testimony of the plaintiff that he was first employed by the defendant in August, 1889, by the day, and so continued to April first following; that during the winter he lived in the house of the defendant, paying seven dollars a month rent; that about the 28th of March, 1890, there was a conversation between plaintiff and defendant in which plaintiff said he was going to leave on first of April because he could do better elsewhere, ánd defendant replied he wanted him to stay, and finally offered him two dollars a day for a year with no lost time, and to this plaintiff replied he would consider it a day or two; that on the morning of April first the subject was continued, the offer of defendant being repeated, and he adding: “ I was calculating to charge you ten dollars a month for the house after I fix it up, but I will let you have the house the same as you have been having it for seven dollars a month for one year,” and that plaintiff replied that he would talce him up at his offer and commence there that morning; that plaintiff continued to work under that contract, until October eighteenth, receiving his pay at the end of every week ; that on the eighteenth of October he was discharged, and was also told to find another place to live in; that on November sixth he paid the defendant rent, receiving therefor a receipt. The plaintiff also gave evidence as to the occasion of the discharge and what subsequently occurred between him and defendant, the latter at one time denying that he ever made any contract with plaintiff. Upon cross-examination he testified to the commencement of summary proceedings and to his putting in an answer therein. Thereupon the defendant put in evidence the record of those proceedings.

From this it appeared that on January 6, 1891, Price, the present defendant, presented to a justice of the peace a verified petition, stating that he was the owner and entitled to the possession of certain premises, and that on or about the 26th April, 1890, he rented the same to Dickinson for the term of week to week from the 26th April, 1890, at the weekly rent of $1.75, payable weekly in advance,” and that on the 3d January, 1891, seven dollars was due for rent under the agreement and remained unpaid, though duly demanded, and that Dickinson lield oyer and was in possession without permission; that thereupon a summons, in usual form, was issued, returnable on January 9, 1891, at which time Dickinson appeared and put in a verified answer, and the matter was adjourned by consent to January thirteenth; that upon the adjourned day Dickinson did not appear, and thereupon, as appears by the judgment entered by the justice, witnesses were sworn “ for petitioner to establish his claim therein, and said issue, joined by said petition and answer, having been tried by me, and my decision thereon being in favor of the petitioner, and that the amount of rent due him from said defendant is the sum of $J, which was payable on the 3d January, 1891,” it was adjudged that such rent was due, and that possession of the property be delivered to the petitioner, and that a warrant issue accordingly. In the answer that was put in by Dickinson, the defendant therein, he denied that he rented the premises from week to week, or that he was indebted in any sum for the rent, and alleged that the rent was paid in full. He also alleged, for further answer, that he and Price, on the 28th March, 1890, entered into a contract by which he, Dickinson, agreed to work for Price for one year from April 1, 1890, at the price of two dollars per day, without any loss of time on his account, and that he, Dickinson, was to have the use of the house in question for the term of one year from April 1, 1890, at the price of seven dollars per month; that Price was to pay him for such services at the end of each week; that he entered upon said work on or about April 1, 1890, and continued to work under the contract until 18th October, 1890, when Price discharged him, and would not allow him to work any longer; that since that time he has been ready and willing to perform, but Price has refused to allow him to do so; that Price agreed, under and by the said agreement, to take his rent for said premises from and in the amount of money agreed to be paid him, Dickinson, under the contract; that Price is not entitled to any rent since the 18th October, 1890, by reason of the breach by him of said contract.

The record above referred to being in evidence, the court, on motion of the defendant, held that it was a bar to the action, and granted a nonsuit so far as plaintiff’s cause of action was concerned.

So that, in substance, it was held that the judgment in the summary proceedings was an adjudication that there had been no breach by defendant of the contract of hiring, and that nothing was due the plaintiff- thereon. The plaintiff duly excepted.

A judgment by default in such a summary proceeding is, as between the landlord and tenant, conclusive of the faqts alleged in the petition, arid which are required by the statute to be alleged as the basis of the proceedings. (Brown v. Mayor, 66 N. Y., 385.) It is not conclusive as to the amount of rent due, but only that some is due. (Jarvis v. Driggs, 69 N. Y., 143.) We must, therefore, assume that at the commencement of the summary proceedings on the 6th January, 1891, the plaintiff owed defendant some rent. This alone would not affect the plaintiff’s cause of action as alleged in the complaint. But the argument is that the finding of the justice, that some rent was due, necessarily disaffirmed the facts set up in the answer as to the breach of the hiring contract. Does this necessarily follow %

Under the Code (§ 2244) the only answer provided for in such proceedings is one denying, generally the allegations, or, specifically, any material allegation of the petition. Under a denial the tenant •could prove payment (Durant, etc., Co. v. East River, etc., Co., 25 N. Y. St. Rep., 928), or that the lease was void as being part of an usurious agreement, and, therefore, no relation of landlord and tenant. (People ex rel. Ainslee v. Howlett, 76 N. Y., 574.) So, in the present case, the tenant might have shown under his denials that the rent was paid in fact, or that it was, in effect, paid by the defendant’s breach of the agreement, by which it was to be taken out of plaintiff’s wages. What was, in fact, shown by the present defendant in his evidence before the justice does not appear. It might have been shown that there was no agreement by defendant to take his rent in that way, and that the contract for hiring and the lease of the house were entirely distinct. The petition alleged that the lease was made on the twenty-sixth of April, while the hiring, as alleged by Dickinson and proved on the present trial, was on the first of April. It is not essential to plaintiff’s cause of action that the lease should have been made on the first of April, or, if made then, that there should have been no modification of it afterwards. Nor is it material to plaintiff’s cause of action whether defendant did or did not agree to take his rent out of plaintiff’s wages.

The issue, as authorized by law, was made by the petition and the denials. The affirmative allegations in the answer did not broaden the issue and should not be so considered in case of default. In Belden v. The State (103 N. Y., 1) it was held that a judgment is not conclusive as to facts not in issue in the action, but proof of which is given therein to establish facts in issue.

In Lewis v. Ocean Navigation and Pier Company (125 N. Y., 341) it was held that where a judgment may have proceeded upon either of two or more distinct facts, a party seeking to avail himself of it in a subsequent action as conclusive evidence as to one of those facts, must show affirmatively that it went upon that fact. According to that rule, if the defendant here claimed that the judgment that rent was due was based on the fact that there was no breach of the contract of hiring, rather than upon the fact that the contract did not apply to the rent, it was his duty to show it. If the possession of the house was in question in this action, then the doctrine which is laid down in some cases, that a judgment is conclusive as to every matter directly at issue by the pleadings which the defeated party might have litigated, might be applied. But here there is an entirely different cause of action, and the real question is as to what facts, by way of evidence, the judgment should be deemed conclusive.

In Zoeller v. Riley (100 N. Y., 102) it was held that the burden of proof is upon the party claiming an estoppel by a former judgment to show clearly that the fact in issue was determined in the former action. (See, also, Shaw v. Broadbent, 41 N. Y. St. Rep., 503.) In People ex rel. Bridgeman v. Hall (104 N. Y., 171) it is said that a judgment is not an estoppel as to any fact not expressly decided, and as to which contradictory inferences may be drawn from different provisions in the judgment.

The issue before the magistrate was, whether there was any rent due. The judgment may or may not have involved the question whether there was a breach of defendant’s contract. The court below held, in effect, that it necessarily involved that question, and was, therefore, conclusive. In this, we think, the court erred.

It follows that the judgment must be reversed.

HaRdiN, P. J., and Martes, J., concurred.

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


author: MeewiN, . J.:

text:
    JOHN P. DOUGLAS, as Executor of HARRIET CHASE, Deceased, Respondent, v. GEORGE E. YOST and Another, as Administrators of JAMES CHASE, Jr., Deceased, Appellants, Impleaded with Others, Defendants.

      Executors and administrators — the jurisdiction of the Supreme Court in an action for an accounting — an executor allowed counsel fees under the Revised Statutes— the power of the court — a former adjudication.

    The Supreme Court has jurisdiction, concurrent with the Surrogate’s Court, in an action or proceeding for an accounting by executors, but will not exercise it unless it appears that complete justice cannot be done in the Surrogate’s Court.
    Where questions arise between the administrators and executors of different estates, involving, among other things, a question as to the power of an executor over lands, and also as to whether an annuitant has a direct lien upon certain lands, and conflicting rights grow out of such questions, the Supreme Court will assume jurisdiction of the case.
    An executor who employs counsel in litigations for the benefit of his estate will be allowed the reasonable value of their'services, although he has not paid their claims.
    Such an allowance is made by the court, under 4 Revised Statutes ([8th ed.], p. 2564, § 58), and is entirely separate from the matter of taxable costs in a Surrogate’s Court provided for by sections 2558 to 2561 of the Code of Civil Procedure.
    This power of the court is a necessary one, as if it did not exist many cases would arise where neither the wills nor the estates of testators could be protected without great personal loss to their executors.
    Where a surrogate’s decree merely allows taxable costs, and a party asserts that the decree decided that no further costs should be allowed, the burden is upon, him to show that an adjudication to that effect was actually made in the former decree.
    Appeal by the defendants, George E. Yost and Levi Chase, as. administrators, etc., of James Chase, Jr., deceased, from an interlocutory judgment of the Supreme Court, entered, after a trial at the Jefferson Special Term, in the office of the clerk of the county of Jefferson on the 1st day of September, 1891, which judgment, among other things, provided, adjudged and decreed that the plaintiff was entitled to the instruction of the court, construing-the last will and testament of Harriet Chase, deceased, as to what the law is in the premises, and ás to his duties under the circumstances, in which he and the trust fund are placed, as follows: * * *

      And it was further adjudged and decreed that it was and is the duty of the plaintiff, and he is hereby directed to pay his attorneys and counsel the several sums found due them, respectively, to wit: Watson M. Rogers, $3,100 ; David Bearup, $1,000, and Levi II. Brown, $1,500, for the services in the complaint and findings herein mentioned, as a part of the ex|>enses of administration, and to charge the same against the estate of said testatrix.
    And it is further adjudged and decreed that plaintiff make payments in the following order:

      Fi/rst. The costs and expenses of this action as hereinafter allowed.

      Second. The expenses of administration.

      Third. The debts of the estate.

      Fourth. The Jermon annuity.

      Fifth. The administrators of James Chase, Jr., and his maternal heirs and next of kin as they are severally entitled.
    * * * * *
    Action was brought to obtain an adjudication as to the proper construction of the will of Harriet. Chase and for a settlement of the accounts of plaintiff as executor, and for direction as to his duties in the premises.

      Thompson <& Chapman, for the appellants.

      Watson M. Rogers and J. Atwell, Jr., for the respondent.
   MeewiN, . J.:

The appellants claim that the Surrogate’s Court of Jefferson county possesses jurisdiction and power to determine all the questions arising in this action, and that no sufficient reason is shown for bringing an equity action in the Supreme Court. It is not alleged in the answer that the plaintiffs have an adequate remedy at law. This, in some cases, has been held to be necessary. (Ostrander v. Weber, 114 N. Y., 102.)

The Supreme Court possesses jurisdiction, concurrent with the Surrogate’s Court, to entertain an action or proceeding for an accounting by executors. (Haddow v. Lundy, 59 N. Y., 320; Cass v. Cass, 61 Hun, 460.) As a general rule, however, circumstances should appear indicating that complete justice cannot be done in the Surrogate’s Court. (Sanders v. Soutter. 126 N. Y., 200.) It is claimed by the respondent that such circumstances do appear here.

In June, 1883, Harriet Chase died, being then the owner of real and personal property, and leaving, as her sole heir and next of kin, her son James Chase, Jr., who was then a minor and an imbecile. She left a will, in which she directed her executor to pay to her son for his benefit so much, if any, as she was legally bound to pay on account of her administration of the estate of his father, and on account of moneys received by her for the use and occupation of lands which descended to the son from his father, deducting so much as was just and proper for the maintenance of the son, and excluding her right of dower and her distributive share in the estate of her husband: She directed that “ the sums to be paid by this provision may be paid out of my personal or real estate, or both, as my executor may elect.” Then, after giving legacies to the amount of $2,000, she gave to her two sisters an annuity of $500 each during their respective lives, with the provision that her executor might in his discretion suspend such annual payment or reduce the amount to $300 annually if he deemed it best and proper for the benefit of her estate. She named two parties who should have the power to superintend the care of the person of her son during his life, with the right to designate the place of his residence and the persons who should have the immediate charge of him, and might if they deemed it necessary purchase a residence for that purpose, and she directed her executor to pay to them, from her estate, real and personal, and the rents and profits thereof, such sums as may be reasonably necessary for the maintenance of the son over and above what he may have from his own estate, and also such sums as they may fairly expend for the purposes named, as well as a reasonable compensation for their own services. She named the plaintiff as the executor, and authorized and directed him to lease and rent any and all of my real estate after my death for such terms and on such times as he may deem best.” There was a codicil, but its contents do not appear.

On the 23d of June, 1883, the plaintiff presented to the Surrogate’s Court a petition for the probate of the will. Objections to the probate were thereafter filed on behalf of the son and a contest was had in the Surrogate’s Court. Pending this, and on the 3d of September, 1883, John D. Ellis was appointed temporary administrator of the estate of Harriet Chase, deceased, and on the 21st of June, 1884, a committee was appointed by the Supreme Court of the person and estate of the son. On the 28th of November, 1884, a decree was made by the surrogate refusing probate to both said will and codicil, and in connection with this the surrogate passed upon and allowed the plaintiff the full bill of costs and disbursements provided by statute, being the sum of $904.72, of which $420 were costs and $484.72 were disbursements, and the same were accepted by the plaintiff. Thereafter the plaintiff appealed to the General Term, and in July, 1886, a decision was rendered (41 Hun, 203) reversing the decree and directing a new trial before a jury. A new trial was had, which resulted in a verdict sustaining the will and rejecting the codicil. In pursuance of this verdict and on the 3d of February, 1887, a decree was entered in the Surrogate’s Court admitting the will to probate and granting letters testamentary to plaintiff, who thereupon qualified and entered upon the discharge of his duties. In this decree there was adjudged to the plaintiff, for costs and disbursements accruing and incurred by plaintiff, as proponent of said will and codicil, subsequent to the prior decree, the sum of $1,435.70, of which $285 were costs and $1,150.70 were disbursements. These sums were paid to the plaintiff or his counsel.

After plaintiff’s qualification as executor, Ellis, the temporary administrator, rendered an account of his proceedings. Over this, there was a contest and the same was finally settled by decree of the Surrogate’s Court on March 31, 1888. On the 10th of April, 1888, the plaintiff received from Ellis the personal estate amounting to $22,748.86. Ellis also surrendered to the plaintiff the real estate of the testatrix, consisting of three farms, and the plaintiff has since then received the rents and profits.

On the 22d of December, 1890, James Chase, Jr., died and the appellants Yost and Chase were on the 29th of December, 1890, appointed administrators of his estate. In September, 1884, Fred "Waddingham was appointed, by the surrogate of Jefferson county, administrator de bonis non of the estate of James Chase, senior, in place and stead of Harriet Chase, deceased. In December, 1888, plaintiff had a settlement with such administrator concerning the indebtedness of Harriet Chase to that estate by reason of her administration thereof, in which settlement it was found that $7,927.04 was the amount of such indebtedness, and this was duly approved by tbe Surrogate’s Court, and the plaintiff authorized by that court to pay the same to such administrator. About the same time there was a settlement between plaintiff and Waddingham as committee of the estate of James Chase, Jr., by which it was found that the indebtedness from Harriet Chase to her son at the time of her death, by reason of her use and,occupation of the real estate of her son, was the sum of $2,179,59. This settlement was affirmed by both the Supreme Court and the Surrogate’s Court, and the plaintiff authorized to pay the same to the said committee. Of the sums so found due there is still unpaid about $1,000.

It was found by the Special Term, upon sufficient evidence, that the defendant Yost, administrator, etc., and some of the paternal heirs of James Chase, Jr., claimed that the settlement and adjustment of the indebtedness of Harriet Chase with said Waddingham was illegal and void for want of notice of the same to the paternal heirs, and that such settlement would not be acquiesced in nor binding upon them.

It was also found that upon the trial it was claimed by some of the maternal heirs of James Chase, Jr., that the provisions of the will authorizing the renting of the real estate by the executor were void, and that the rents received by him were real estate, and should be paid to the maternal heirs to the exclusion of the administrators of the estate of James Chase, Jr., and his paternal heirs, and that it was the duty of Waddingham, upon his appointment as committee, to have taken possession of the real estate of the testatrix, and received the rents and profits down to the time of the death of said James; that it was claimed by the administrators of James Chase, Jr., that the rents and profits received by plaintiff were personal estate, and that they were entitled to receive the same as such; that Waddingham claimed he had no right to take possession of such real estate, or receive the rents and profits. The appellants’ counsel claims that there is no proof to sustain these findings. No exception is taken to them. The answers of the defendants, the maternal heirs, and of Waddingham are not printed in the appeal book. The complaint is broad, enough to cover all these questions. It is quite apparent from the pleadings that are printed, and from the requests of the appellants, that a question was made as to the validity or extent of the power of the plaintiff over the real estate. There was also apparently a question whether the surviving annuitant had directly a lien on the real estate, or indirectly a lien through the exercise by the plaintiff of the election given him in the first clause of the will, whereby the debts there referred to would be payable from the real estate, thereby increasing the amount of the personal estate applicable to the payment of the annuity.

It further appears that the plaintiff, in the litigation concerning the probate of the will, employed counsel whose services were reasonably worth several thousand dollars over and above the sums awarded as costs in the decrees of the Surrogate’s Court. It is found, upon sufficient evidence, that such employment by the executor was necessary, and was made in good faith and for the benefit and protection of the estate. There is no dispute in the evidence as to the value of the services. After such services were rendered and the will admitted to probate and letters testamentary issued to plaintiff, the surrogate informed the plaintiff that counsel fees on account of said probate proceedings could not be lawfully paid by him on account of said estate, and that no allowance could be made on the settlement of plaintiff’s accounts, as executor, for payment of such services, whatever their value, unless it should be first determined by the Supreme Court that the same are authorized by law and can be allowed to an executor on its final accounting.

Having in view the character of the will m question, the proceedings by plaintiff thereunder in the administration of the estate and the diverse interests likely to exist, as well as claims made, and the situation of the plaintiff himself as to expenses incurred by him in the line of his duty as executor, we are inclined to the opinion that sufficient reason is presented for bringing the action in the Supreme Court. The maternal heirs of James Chase, Jr., the committee, "Waddingham, and the attorneys who claim counsel fees, were all parties defendant in the action, and seem to have answered in the case. None of those parties, however, are made parties upon this appeal.

The main question raised by the appellants here upon the merits relates to the counsel fees, and we may as well come directly to that subject. In doing so, we assume that the appellants can raise the question whether the plaintiff has a right to be reimbursed for the expenses of counsel, although such counsel have not been brought in upon this appeal. If the plaintiff deemed it important that they should be parties here, it was probably his duty to have moved for an order requiring the appellants to bring them in, and in that way perfect their appeal. This was the practice followed by this court in Hubbell v. Syracuse Iron Works, decided by this court in April, 1890, and affirmed by the Court of Appeals in 121 New York, 116.

The Special Term, after finding the amounts due the respective counsel as the fair and reasonable value of their services, and that the employment of such counsel by the executor was necessary and in good faith and for the benefit and protection of the estate, decided as matter of law that it was the duty of plaintiff to pay the respective counsel the sums found, as a part of the expenses of administration, and to charge the same against the estate. An accounting was directed before a referee in which the executor would be credited with payments so made.

It is suggested by the appellants that the court had no right to pass upon the propriety of such payments before they were actually made by the executor. The appellants had full opportunity to be heard, both as to the right and the amount, and it is difficult to see how the rights of the appellants have been injured or impaired by the determination of the question before actual payment. The judgment does not provide for any credit to the executor for such charges before actual payment, and in that respect is not within the rule laid down in Matter of Bailey (47 Hun, 477), and kindred cases. As said by Finch, J., in an analogous case (Matter of Atty.-Genl. v. North Am. Life Ins. Co., 91 N. Y., 61), they are none the less the necessary expenses of his trust because fixed in advance of actual payment. In Gilman v. Gilman (6 T. & C., 211; affirmed in 63 N. Y., 41), counsel fees seemed to have been allowed before payment.

We then come to the question whether the plaintiff is entitled to be indemnified from the estate for expenses necessarily and in good faith incurred in obtaining the probate of the will. The claim of the appellants is that the plaintiff can obtain for such expenses nothing beyond the costs awarded to him in the decrees of the Surrogate’s Court made in November, 1884, upon refusing probate of the will, and in February, 1887, upon admitting the will to probate. The costs allowed in those decrees were those permitted by sections 2558 to 2561 of the Code, and may properly be called the taxable costs of the proceedings, and were apparently paid by the temporary administrator while the estate was in his hands. They are not, as between the attorney and the client, the measure of the value of the services of the attorney. (Gallup v. Perue, 10 Hun, 525.) The statute, 4 Kevised Statutes ([8th ed.], 2564, § 58), with reference to the settlement of accounts of executors provides that “ in all cases such allowance shall be made for their actual and necessary expenses as shall appear just and reasonable.” This would include expenses, of the character stated, incurred in the employment of legal counsel on the application for probate. (Redf. Sur. Pr. [2d ed.], 458; 1 Williams Exrs. [6th Am. ed.], 442, note y; Young v. Young, 8 Gill., 285.) It was the right of the executor, and ordinarily his duty, to present the will for probate. (1 Williams Exrs., 355.) So that his reasonable expenses in that regard would be incurred in the discharge of the duties of his trust. His right would be deemed as accruing at the date of the death. (1 Williams Exrs., 696.)

It has been held by the Court of Appeals that the Supreme Court has power to make allowances to trustees and others acting in a fiduciary capacity for all expenses necessarily incurred in the faithful performance of their duties, including counsel fees, and that the power to do this is independent of the statutory provisions relating to costs. (Wetmore v. Parker, 52 N. Y. 466, referring to Downing v. Marshall, 37 N. Y., 380.) This is applicable to executors, and the existence of the principle seems to be conceded in Matter of Application of Holden, (126 N. Y., 593; see, also, Woodruff v. N. Y., L. E. cmd W. R. R. Co., 41 N. Y. St. Rep., 193). There is nothing in the provision of the Code as to the costs in probate cases that interferes with this principle. There is no good reason presented for inferring an intent to so interfere. Did not such a rule exist there would be many cases where the wills of testators, as well as their estates, could not be faii-ly protected without great personal loss to the executors. A testator in naming an executor gives him an implied authority and direction to do all he reasonably can to prove and carry out the will, and this carries with it the right to charge tile estate with the reasonable expense. We see no good reason in the present case why the plaintiff should not be indemnified. It is not necessary here to consider the effect of the provisions of section 2562 of the. Code, as that does not refer to counsel fees in a case like the present.

But it is said that the Surrogate’s Court, in its decrees as to costs, adjudicated that the costs then allowed were all that the plaintiff was entitled to receive for expenses of counsel in those proceedings. There was no adjudication in terms to that effect, nor is that the fair inference from those decrees. The taxable costs were allowed. The question of what the plaintiff had incurred for counsel fees, or .should be allowed, was not then before the court. The parties were not there who had a right to be heard on the question. In Unglish v. Marvin (128 N. Y., 380) it is said that a party relying upon a former adjudication as a bar must show that the point involved was decided in the former suit. We fail to find here any former adjudication that affects the question.

No other questions are presented that call for particular consideration. No fault is found with the form of the decree.

It follows that the judgment should be affirmed.

Hardin, P. J., and MaetiN, J., concurred.

Judgment affirmed, with costs.


author: MeRWIN, J.:

text:
    In the Matter of the Judicial Settlement of the Accounts of FRANKLIN A. WILLIAMS, as Executor of TIMOTHY D. PORTER, Deceased. FRANKLIN A. WILLIAMS, Executor, etc., and Individually, Appellant, v. SECOND CONGREGATIONAL SOCIETY OF THE TOWN OF COVENTRY, Respondent.

      Legacy — when it is valid — when a limitation imposing a trust upon a legacy otherwise valid mil he disregarded — review of the decision of a surrogate.

    The will oí Timothy D. Porter contained, the following clause:
    “I give and bequeath unto the Second Congregational Society of Coventry the sum of seven hundred dollars, the same to he loaned on bond and mortgage, and so Kept by my executors, and the interests arising therefrom to be appropriated yearly to pay for the preaching of the Gospel in said Congregational Church.”
    Upon the final judicial settlement of the accounts of the executor the surrogate decided that the legacy was valid.

      Held, that such decision was correct.
    That the legacy was not, in substance, a gift to the executors in trust forever.
    That the legacy vested absolutely in the society, and that the attempt to create a trust in the management of the funds was a limitation which would be disregarded.
    The surrogate further decided that the legacy was a lien upon a certain farm. The evidence and proceedings below were not returned.

      Held, that as it did not appear what questions were presented to the surrogate, or whether it was proper for him to pass upon other provisions of the will this court could not interfere with such decision.
    Appeal by Franklin A. Williams, executor of and a legatee under the will of Timothy D. Porter, deceased, from a decree of the surrogate of Chenango county, entered in his office on the 27th day of July, 1891, adjudging a certain legacy to be valid and declaring it to be a lien upon a farm devised by said Porter to said Williams.

      W. G. Cady, for the appellant.

      W. F. Jenks, for the respondent.
   MeRWIN, J.:

The controversy in this case is over the validity of the thirteenth clause of the will of Timothy D. Porter. That clause is as follows:

Thirteenth. “ I give and bequeath unto the Second Congregational Society of Coventry, the sum of seven hundred dollars, the same to be loaned on bond and mortgage, and so kept by my executors; and the interests arising therefrom to be appropriated yearly to pay for the preaching of the Gospel in said Congregational Church.”

It was held by the surrogate that the legacy was valid, and that the church was entitled to receive the amount thereof.

It is not claimed by the appellant that the church has no power to take the legacy, or that the specification of the object or purpose to which the interest is to be applied defeats the legacy, but that the gift is in substance to the executors in trust in perpetuity, and is, therefore, invalid under the law as laid down in Adams v. Perry (43 N. Y., 487).

The claim of the respondent is that the legacy is given absolutely to the church and vests in it, and that the attempt to create in the executors a trust in its management is not operative, and does not defeat tbe legacy.

In Adams v. Perry it was held that a bequest to trustees of personal estate to invest and reinvest, and pay over the income to an incorporated academy forever, is void under the statute of perpetuities. In that case the property was given expressly to the trustees, and provision was made for the perpetuation of the trusteeship. So that it was held that under the provisions of the will the title vested in the trustees. It was said by Judge Grover, in delivering the opinion of the court (page 491), that he “should have found no difficulty in sustaining the bequest of the residue had it been made directly to the corporation, or if capable of being so construed as to vest the title of the corpus in the corporation, subject to the trusts and conditions specified.” In Cottman v. Grace (112 N. Y., 299) the gift was directly to the trustees, and so it was in Read v. Williams (125 N. Y., 560; 27 N. Y. St. Rep., 506).

These cases are unlike the present. Here there is a gift directly to the church, followed, however, by a limitation upon its management, and the question is whether such limitation can be disregarded. There are authorities which sustain such a conclusion.

In Dorland v. Dorland (2 Barb., 63) the testator gave to his wife $500, and directed his executors to put it at interest and apply the interest for her support. It was held that the widow was entitled to receive the legacy, it being said by Justice SteoNG that “ the gift of that sum is absolute. The direction to the executors to put the money at interest for her support does not in any manner revoke or qualify the donation. It merely relates to the investment, and, as it is inconsistent with the absolute title before given to her, it is null and void.” In Pray v. Hegeman (92 N. Y., 508) it was held that an invalid direction ior the accumulation of a portion of the income of the share of a life-estate man was to be regarded as stricken from the will, thus leaving the life-estate man the owner of the entire income. The same principle was applied in Barbour v. De Forest (95 N. Y., 13). An ineffectual attempt to create a trust estate in regard to a bequest does not affect the validity of the bequest, if, in other respects, it is valid. (Everitt v. Everitt, 29 N.Y., 39, 82.) In Greene v. Greene (125 N.Y., 506) there was an inhibition against a partition or division for six years and a restriction upon tbe power of alienation. It was held tbat the invalidity of’ these limitations did not affect the devise, otherwise valid, it being said that invalid limitations upon the free .ownership of property devised may be disregarded. Courts lean in favor of the preservation of all such valid parts of a will as can be separated from those that are invalid without defeating the general intent of the testator. (Harrison v. Harrison, 36 N. Y., 543, 548, and cases cited.)

It should be said here, as in the Greene case above referred to, that the attempted limitations upon the free ownership of the legacy may be disregarded. It follows that the surrogate did not err in holding that the church was entitled to receive the legacy.

The appellant further claims that the surrogate exceeded his jurisdiction in that, in one of his conclusions of law, he held that the legacy was a lien upon the farm devised to said Franklin A. Williams-by a subsequent clause of the will. The evidence and proceedings before the surrogate upon the trial are not returned. The findings of fact and law which appear in the record before us are, according to the recitals therein, based upon “ the testimony and stipulations of the parties.” The petition presented by the appellant asked that the legacy be declared void, and that the petitioner be discharged and held not liable to pay the same. The court held that he was liable. Whether, in arriving at this conclusion, it was important or proper for the court to pass upon the effect of any other provision of the will, we cannot well determine without having before us the proceedings before the court at the trial. What questions were, in fact, presented to the surrogate for decision does not appear. It does not appear what personal estate, if any, was in the hands of the executor. If it was important for the appellant to raise the question that the surrogate had decided too much, he should have made a case containing the proceedings. The appellant does not claim that the legacy was not, in fact, a lien.

It follows that the decree of the Surrogate’s Court should be affirmed, with costs.

FIaRdiN, P. J., and MartiN, J., concurred.

Decree of Surrogate’s Court of Chenango county affirmed, with costs.


author: BaRNaed, P. J.:

text:
    In the Matter of the Application of JOHN E. CORWIN for a Writ of Certiorari Directed to the Assessors and Clerk of the City of Middletown, Orange County.
    (Nos. 1-2.)

      Assessors — a person aggrieved must appea/i' inpen'son on grievance day.

    A person aggrieved by an assessment, and who desires to review the same, under chapter 269 of the Laws of 1880, must comply with the provisions of chapter 176 of the Laws of 1861, as amended by chapter 586 of the Laws of 1857; he must appear in person and submit himself to examination, under oath, by the assessors.
    It is not enough that an attorney appears for him and presents an affidavit, verified by the attorney, to the effect that the assessment is illegal and unjust, at the same time merely offering to have his client appear before the board.
    Appeal, in Matter No. 1, by the assessors and clerk of the city of Middletown from an order of the Supreme Court, entered in the Orange county clerk’s office October 2, 1891; and from an order, entered in said county clerk’s office September 19, 1891; and, in Matter No. 2, by said assessors ánd clerk of said city from similar orders.

      George S. Decker, for the assessors and clerk, appellants.

      Willimn Vanamee, for the relator, respondent.
   BaRNaed, P. J.:

By chapter 269, Laws of 1880,'a writ of certiora/ri is provided for when an assessment is illegal or erroneous by reason of over valuation or because the assessment is disproportioned to the assessment of other real and personal property. The words of. this act are extremely general and on their face seem to authorize a writ of certiorari to review the assessment without the aggrieved party applying to the assessor to correct the error. The Court of Appeals in the ease of The People ex rel. Mutual Union Telegraph Company v. Commissioners of Taxes (99 N. Y., 254) restricts the act of 1880 to cases where there was a failure by the assessors to correct the assessment-roll. The principle is again applied in People ex rel. West Shore Railroad Company v. Adams (125 N. Y., 471). Unless the relator did what he was required to upon grievance day, the Law of 1880 does not apply to him. He did not personally appear, but did appear by attorney only. The attorney filed his affidavit that the assessment was illegal and unjust. The assessors asked the attorney if his client did not own $10,000 in personal property, which was the amount assessed against him, and the attorney admitted, for the sake of the argument, that his client was worth $75,000. No proof was offered and upon a personal application to the relator he refused to state in what sum he should be assessed or to make any statement as to the value of his property. What the relator should have done is provided for by chapter 176, Laws of 1851, as amended by chapter 536, Laws of 1857. The relator was to apply. It was then the duty of the assessors to examine him on oath. Then the assessors were to hear other supplementary evidence under oath to be presented by the relator. If the relator refuses to answer questions as to the value of the estate under oath or present sufficient evidence under oath to justify a reduction, the assessors “ shall not reduce the value of such real or personal estate.” The examination of relator and of the supplementary evidence is to be taken down, signed and filed in the town clerk’s office. * An offer to submit to an examination when the party is not present was of no effect. The assessors, therefore, bad no power to reduce the assessment upon the case made solely upon the affidavit of the attorney.

The order should, therefore, be reversed, with costs and disbursements, and the motion to quash the writ be granted, with costs.

Pratt, J., concurred.

Order denying motion to quash writ of certiorari reversed with costs and disbursements, and motion granted, with costs.


author: Barnard, P. J.:

text:
    CELIA A. STILWELL, Appellant, v. HANNAH E. ARCHER, Respondent, Impleaded with Another, Defendant.

      Evidence — trial—affirmative of the issue — admission of the making and denial of the delivery and consideration of a bond.

    One Stilwell brought an action upon a bond made by Hannah E. and Eugene Archer. The defendant Hannah E. admitted the execution of the bond,>but denied its delivery, or that there was any consideration for it; she also alleged fraud and usury.
    Upon the trial of the action she claimed to hold the affirmative of the issue, which . demand was conceded to her by the court.

      Held, that this was error.
    'That, in order to entitle the plaintiff to judgment, it was necessary for her to prove the delivery and consideration of the bond, and she, therefore, held the affirmative.
    Appeal by the plaintiff Celia A. Stilwell from a judgment of the •Supreme Court, entered in the office of the clerk of the county of Westchester on the 6th day of April, 1889, upon a verdict for the ■defendant directed by the court at the Westchester Circuit after a trial before the court and a jury.

      Norman A. La/wlor, for the appellant.

      Ohauncey Shaffer, for the respondent.
   Barnard, P. J.:

The plaintiff had the affirmative of the issue under the pleadings. The action is upon a joint bond executed by Eugene Archer and Hannah E. Archer to the plaintiff to secure the payment of $1,000. The defendant Hannah E. Archer answers that she is a married woman, and that the bond was not given for her separate business; that there was no consideration for it, and that it was never delivered to the plaintiff. The answer sets np additional affirmative defense that the bond was obtained by fraud and was usurious; and that the plaintiff accepted the note of Eugene Archer in payment and satisfaction of the bond. The plaintiff, upon this state of the pleadings, could not take judgment without proof of the delivery and consideration of the bond. The defendant had the affirmative of the issue given to her; she was then sworn, and testified that she signed, the bond at the request of her husband, and that nothing was said by him to his wife as to the purpose or consideration of the bond which accouqDanied a mortgage upon Mrs. Hannah E. Archer’s separate property. That it had been talked of between the husband and wife that $1,000 was to be borrowed to improve Mrs. Archer’s place. Proof was given by Eugene Archer that he negotiated for the money with Stephen J. Stilwell, his nephew, and upon an agreement that he and Eugene Archer would use the money as partners in buying and selling stocks. The money loaned belonged to the plaintiff. Stilwell soon after this married her. Proof- was given by defendant, Mrs. Archer, tending to show .usury, and that Stephen J. Stilwell owed Eugene Archer profits on stock bought and sold, and that Eugene Archer’s note was given for $1,000, at two years’ credit, in satisfaction of jalaintiff’s note. The plaintiff testified that she gave a check for $1,000 and received the bond and mortgage; that she never knew of any stock speculation ; that there was no usury; that she never authorized her husband to take Eugene Archer’s note for her mortgage. The case went to the jury and they failed to agree, whereupon the court directed a judgment for the defendant. The plaintiff is entitled to a new trial on the ground that the affirmative of the issue Was with the plaintiff. (Millerd v. Thorn, 56 N. Y., 402.) And also upon the ground that the proof did not justify a direction of a judgment for the defendant. The plaintiff lent the money, and there was nothing, proven beyond question, which destroyed her mortgage.

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

Peatt, J., concurred; DyxmaN, J., not sitting.

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


author: Pratt, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff, v. WILLIAM NOONEY, Defendant.

      Bcdl — power of the County Court to remit a forfeiture of bail — no limit of time.

    Under sections 597 and 598 of the Code of Criminal Procedure the County Court has power, at any time, and after entry of judgment upon the undertaking, to remit a forfeiture of hail.
    Appeal by Thomas Farrell, surety, from an order of the Orange' County General Sessions, entered in the office of the clerk of said county on the 13th day of October, 1891, denying, upon the ground of a want of power (judgment having been taken upon the undertaking), a motion made* by said Farrell to remit the forfeiture of a bail bond or undertaking given for the appearance at the Orange County General Sessions of one William Nooney.
    It appeared from the moving papers that Nooney was then actually in custody, having been sentenced in New York city for another crime.

      John W. Lyon, for Thomas F. Farrell, surety, appellant.

      M. H. IlirscKberg, district attorney, for the People, respondent.
   Pratt, J.:

We think the County Court had power to remit the forfeiture of bail in this case.

There seems to be no limit of time specified in section 597 of the Code of Criminal Procedure, and section 598 seems to imply that it can be remitted after proceedings to enforce the forfeiture have been commenced, as it provides that such a motion can be granted only upon payment of the costs and expenses incurred in the proceedings for the enforcement of the forfeiture.”

Reading the two sections together it seems plain that there is no restriction as to the time when the County Court can make the remission.

Order reversed, with costs and matter remitted to County Court for rehearing.

BarNard, P. J., and DyrmaN, J., concurred.

.Order reversed, with costs and disbursements, and proceedings remitted.'


author: Dyhman, J.:

text:
    JAMES SWEENEY, an Infant, by JAMES SWEENEY, his Guardian Ad Litem, Appellant, v. DAVID R. PAGE and Another, Respondents.

      Negligence — contractor and servant — a visible defect — rislcs of the employment.

    One Sweeney was an employee of contractors who were building a dam, the stone used in the construction of which was carried to the point of deposit by a tramway, which descended at an angle of about one foot in four. On this car Sweeney acted as brakeman, it being his duty to check the descent of the car. The car, its appliances and the track, were suitable for the purpose and in good order.
    A large stone, loaded upon the car by fellow-workmen, being jolted during the passage, moved forward, struck Sweeney, who was in front of it, threw him off the car and he was injured.
    In an action brought by Sweeney to recover the damages resulting from the alleged negligence, in the premises, of the contractors:

      Held, that he could not recover.
    That the accident resulted from the manner in which the stone was put upon the car by his fellow-servants, and that if, as alleged, there was any spreading of the rails this was a risk of the employment, and, further, that any defect in the rails was visible and should have been observed by Sweeney.
    Appeal by the plaintiff James Sweeney, an infant, by James Sweeney, bis guardian ad litem, from a judgment of the Supreme Court, entered in tbe office of the clerk of the county of Putnam on the 5th day of November, 1891, the complaint having been dismissed after a trial at the Putnam Circuit before the court and a jury.

      W. Farrington, for the appellant.

      Abram J. Rose, for the respondents.
   Dyhman, J.:

The defendants in this action were building a large dam for the •city of New York, in the town of Southeast, in Putnam county, and obtained the stone from a quarry about three-quarters of a mile from the work.

There was a railroad from the quarry to the foot of an incline, and the stone were transported upon cars to that point and then the cars, as they were loaded at the quarry, were raised or drawn up the incline to the top by a stationary steam engine. At the summit there was a turn-table upon which the cars were placed and turned so as to run upon another track and be drawn by a mule for a short distance upon the level until they reached the top of another incline, down which they ran by force of gravitation to the place where they were to be used.

There was a brake on each car, with a loop in the top of the staff, through which a stick was run for a handle to be used in applying the brake. There was no fastener for the brake, and it was held tight or loose by the operator as he desired to regulate its movement. This last descent was about twelve rods in length, and about four or five feet to the rod.

It was the duty of the plaintiff to mount the car when it left the turn-table, tighten the brake and be ready to regulate the speed when it commenced the descent.

The car upon which the plaintiff was injured came to the turn-table, in the usual course of business, loaded with three stones weighing about one ton each. The stone near the brake was about four or five feet long and four feet high; as the car started down the descent the plaintiff was standing upon the car in front of the stone holding the brake, when the car gave a jolt and the stone moved forward and struck the plaintiff and threw him off, and he fell under the wheel and was dragged or pushed along to the bottom of the hill and received the injuries of which he complains in this action.

There was no defect in the track or the car, and the movement of the stone upon the ear was the cause of the injury. It is true the plaintiff said the rails had spread, and the expansion jarred the car.

The cause was tried at the circuit, and at the close of the testimony on the part of the plaintiff the defendant moved for a nonsuit, which was granted, and the plaintiff excepted, and has now appealed from the judgment entered against him.

Before the defendants can be rendered liable for the injuries sustained by the plaintiff they must be convicted of personal negligence which contributed to the accident; and in the examination of the question they are entitled to the presumption in which the law indulges that they have performed their duty towards the plaintiff as their employee until the contrary is made to appear.

It is well settled law in this State, applicable to cases of this character, that a master is bound to exercise all reasonable care to provide a secure place and safe machinery and implements for the use of bis servants, but experience lias shown that when that duty has been performed with scrupulous care there often remain dangers, incident to the nature of the employment, "which are beyond the reach, of anticipation.

In this case the cause of the injury is not obscure. It resulted from the insecure loading of the stone upon the car at the quarry, and that work was done by persons employed by the defendants who were co-servants with the plaintiff, and against whose negligence the defendants are not insurers.

Besides this, if there was danger in the situation incident to the mode of carrying forward the work in which the defendants were engaged, they were all apparent, and as easily observed by the plaintiff as by the defendants; and he is equally with them chargeable with knowledge of such imperfections.

A careful examination of the testimony fails to disclose any negligence on the part of the defendants. They were engaged in the erection of a large structure requiring many appliances for the facili-' tation of the progress of the work, and among these were the railroad and cars and the stationary engine, all of which answered the purposes for which they were designed.

The defendants were not required to furnish the best appliances for their workmen. They were contractors for the construction of a large dam, and their success depended upon economical devices for the advantageous prosecution of their work. They had the right to consult their own interest, and their duty to their workmen was discharged when they used reasonable diligence and care for their safety. The railroad was an easy means for the speedy transportation of stone from the quarry to the place where they were to be used, and it was a temporary track easily shifted at the end to facilitate the deposit of stone and other material at the proper point. Neither the track nor the cars ever failed to endure the weight and strain to which they were subjected. They always answered their purposes, and even at the time of the accident nothing gave way, and the car was not derailed.

Moreover, as we have, already said, substantially, the plaintiff and others saw the track and could plainly discover any danger to which he was exposed from its insecurity, but there never was any complaint of its inadequacy or of its dangerous condition, and that is a plain indication that no one supposed there was any danger in operating the car as the plaintiff used it.

The following cases are deemed adequate authority for what we have said: Marsh v. Chickering (101 N. Y., 396); Cahill v. Hilton (106 id., 518); Byrnes v. New York, Lake Erie and Western Railroad Company (113 id., 254); Burke v. Witherbee (98 id., 564).

Thus, there are two reasons why the plaintiff cannot recover in this action: First, because his injury resulted from the carlessness of his fellow-workmen in loading the stone upon the car; and, second, because the defendants have not been guilty of negligence.

The judgment should be affirmed, with costs.

Pbatt, J., concurred; Babnaed, P. J., not sitting.

Judgment affirmed, with costs.


author: Dykman, J.:

text:
    MERCHANTS’ NATIONAL BANK OF GARDINER, Kennebec County, Maine, Respondent, v. JOHN CLARK and Another, Appellants, Impleaded with Another, Defendant.

      Bills and notes — principal and agent — when a note signed hy its officers is not that of a corporation — bona fide holder — notice — knowledge of an officer in his individual capacity.

    An action was brought upon a promissory note in tbe following form:
    “ $5,000. Beookltn, N. Y., Sept. 1, 1890.
    “ Three months after date we promise to pay to the order of Clark & Chaplin Ice Co., Five Thousand Dollars, at Mechanics’ Bank. Yalue received.
    “E. H. CLOSE, Breas.

    “JOHN CLARK. Brest."

    Upon the edge of the note was printed “ Ridgewood Ice Co.” Clark was president and Close was treasurer of the company, and they had power to make notes for it.

      Held, that it was the individual note of Clark and Close.
    That as the name of the company was not contained in the body of the note, the printed words in the margin being no part of it; as the words of promise were “we promise to pay,” and as Clark and Close signed their individual names, merely adding tlieir official designations, they must be held to have executed the note as principals.
    In order to show that the plaintiff, a bank, was not a bona fide holder of the note, one of the defendants was asked whether he had had a conversation with the president of the bank, in which the latter stated that when the bank received the notes it knew that they were those of the company. The answer to this question was excluded.

      Held, that this was proper.
    That the question called for nothing but knowledge acquired by the president, as a private person, and that this did not bind the bank.
    Appeal by the .defendants, John Clark and Edwin H. Close, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Kings on the 22d day of June, 1891, upon a verdict for the plaintiff for $10,315.91 after a trial at the Kings County Circuit before the court and a jury.

      Henry Daily, Jr., for the appellants.

      Edward B. Merrill, for the respondent.
   Dykman, J.:

This is an action upon two promissory notes in this following form:

The other note is precisely like this.

Clark was the president of the Ridgewood Ice Company and Close was its treasurer, and they were clothed with power to issue commercial paper for the corporation, and these notes seem to have been made in the usual course of business. They were forwarded to the payee, and by it indorsed over to the plaintiff.

The cause was tried at the circuit where a verdict was directed for the plaintiff for the full amount of both notes, and the defendants, Clark and Close, have appealed from the judgment entered upon that verdict

The action is defended by them upon the theory that the notes are the obligations of the company of which they were officers, and not their individual paper, and we are to ascertain whether their defense is meritorious. Whether the contract evinced by the notes is obligatory upon the defendants personally or upon the company, whose officers they are, depends upon the interpretation to be placed upon the instruments.

If, as we must assume, these appellants intended to execute valid instruments which would be obligatory upon the maker, it was very necessary for them, if they desired to avoid personal liability, to use plain words to denote such purpose. Preliminarily, it may be remarked that a liberal construction is ordinarily adopted in the interpretation of commercial instruments, and if from such an exposition it can be reasonably concluded that the intention was to bind the principal, and not the agent, the courts will adopt that construction. (Story on Promissory Notes, § 69.)

Let us now see what intention is expressed by these instruments. In the first place, the name of the Ridgewood Ice Company is not contained in the body of the notes, and the name of the company printed in the magin is no part of the notes. Neither did the appellants undertake to sign for this company or to bind it in anyway. They say in the notes, “We promise to pay,” and sign their individual names with the addition of their official designation. Thus, there is the entire absence of any language indicative of an intention to charge their company or exempt themselves from personal liability.

If an agent desires and intends to bind a principal, he must contract in his name, and that is the cardinal rule which must control this appeal, for there is nothing in the body of these notes or in the manner in which they are executed indicative of an intention to exempt themselves from liability.

The security of the holder of commercial paper must always appear upon the face of the bill. Makers and indorsers, acceptors and drawers are responsible only because they have executed the instrument. Any other rule would launch the commercial world upon a sea of uncertainty. We do not intend to say that negotiable paper must be signed by a party personally. It may be executed by an agent or an. officer, but the name of the principal must appear in the paper, and the mere addition of the official title of the agent or officer is only a personal description, and is insufficient of itself to constitute an exemption from personal responsibility.

The foregoing observations are sustained by the following authorities: Moss v. Livingston (4 N. Y., 208); De Witt v. Walton (9 id., 571); Stone v. Wood (7 Cowen, 453); Pentz v. Stanton (10 Wend., 271); Taft v. Brewster (9 Johns., 334).

If there are decisions which seem to form an exception to the general rule, they will be found in cases where the name of the principal appeared upon the instrument and the court, in pursuance of the inclinations we have noticed above, has adopted a liberal construction to deduce an intention to bind the principal, and not the agent.

There remains, however, another question for examination. In the answer of these appellants they say their company was incorporated and had a contract with the Clark and Chaplin Ice Company for ice, and that these notes were made by them in the usual course of business for the benefit of the company, in payment for the ice furnished under such contract; and that the plaintiff had knowledge of such facts, and the proof of those allegations in the answer would constitute a valid defense to this action. (Bank of Genesee v. Patchin Bank, 19 N. Y., 312.)

The payee in these notes could not recover upon them against these defendants, because it was in full possession of all the facts and had notice that they were made for the company in payment for its liability by its officers, with ample authority in the usual course of its business. The plaintiff, however, claims to recover as an innocent holder for value without notice, and it was competent for the defendants to disprove their innocence by proof of notice, and they made an effort in that direction upon the trial by asking this question of the defendant when he was under examination as a witness: “ Before the commencement of this suit had you conversation with Mr. Dennis, the president of the plaintiff, with regard to these notes in which he told you that at the time the bank received these notes they knew that they were notes of the Ridgewood Ice Company and given upon this contract ? (Defendants’ exhibit 3.) Objected to.

“ The Court — It is sustained on the ground that the declarations of the president are not competent evidence against the bank. (Defendants except.)”

This question called for nothing but knowledge acquired by the president as a private person, and that was insufficient to charge the bank with notice; where notice or information is received' by an officer of a bank in his official capacity the bank is presumed to have it, otherwise if it is received as a private individual. (Atlantic State Bank v. Savery, 18 Hun, 36; affirmed, 82 N. Y., 291.)

The exception, therefore, presents no error and the judgment should be affirmed, with costs.

Barnard, P. J., and Pratt, J., concurred.

Judgment affirmed, with costs.