text:
    The Village of Oneida, Respondent, v. T. Augustus Thompson and Thomas W. Angel, Appellants, Impleaded with Elverton C. Stark.

      Villages — nature of the liability of a tax collector to the village — it is that of an ordinary debtor — not excused by failure of bankers with whom he has deposited tax moneys — effect of a new village cha/Her.

    The liability of a tax collector of a village for moneys collected by him is absolute in ils nature, and his position does not differ from that of an ordinary debtor at common law. He and his sureties are, liable for any moneys which he has collected, but has not paid over, and are not excused by the fact that the moneys were deposited with bankers who subsequently failed.
    The fact that a new charter was granted to the village in 1894 (Laws of 1894, chap. 620) does not affect the right of the village of Oneida to bring an action to recover moneys thus previously lost.
    Appeal by the defendants, T. Augustus Thompson and another, ' from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Madison on the 29th day of April, 1895, upon the decision of the court rendered after a trial at the Madison Circuit before the court and a jury. On the trial both parties requesed that a verdict be directed in his favor, and the court thereupon dismissed the jury and asked that the case be submitted on written briefs,

      B. A. Hansom, for the appellants.

      II. W. Goley, for the respondent.
   Parker, J.:

The trial court has found as a fact, in this matter, that the moneys collected by the defendant Thompson, as collector of the village of Oneida, were deposited to his credit in the banking house of E. C. Stark & Co., and 'that the balance, for which this action is brought, remained to his credit when such bankers made their assignment. It further finds that such sum has never been paid over to the treasurer of such village, and we are satisfied from the evidence upon that question that such finding should not be disturbed. The question is, therefore, presented, as to what measure of liability should be imposed upon the collector and his sureties for the loss so sustained. In the Faulkner Case (People ex rel. Nash v. Faulkner, 107 N. Y. 477, 487) it is said that the question is still an open one whether, when a case arises against an officer for not paying over and accounting for public moneys intrusted to him in his official capacity, his liability, in the absence of statutes specially defining it, shall b& governed by the common law, or whether the broad and more rigid! rule of responsibility laid down in the case of Muzzy v. Shattuck (1 Den. 233) shall be enforced in this State. In that case it was not considered necessary to determine that question, because the moneys received by the surrogate, the defendant therein, were not deemed public moneys.

That suggestion was adopted by this court in the Tillinghast Case (Tillinghast v. Merrill, 77 Hun, 481), and the question was there considered as an open one. It refused to accept the rule adopted in the Dorr Oase (Supervisors of Albany v. Dorr, 7 Hill, 583) and held the defendant liable, though the moneys were lost by him in precisely the same way in which they were lost by the defendant in the case now before us. Its decision was placed, not upon the theory that there was anything in the bond of the supervisor, the defendant in that case, nor in the statute regulating his liability, that enlarged his common-law obligations, but upon the ground that the weight of authority was in favor of holding such officers as debtors to the town for the public moneys received by them. Such was the conclusion of law found by the trial court in that action, and such conclusion was affirmed on that appeal. That decision seems to be controlling in the case now before us. It is true that there is some difference in the phraseology of the conditions of the bonds and of the statutes imposing the liability in the two cases, but that difference is immaterial, inasmuch as in neither does the statute or the condition of the bond, in terms, or by necessary implication, impose the obligation of a debtor upon either officer. Moreover, though different in their phraseology they are alike in substance.

In the case now before us the condition of the bond is, that the officer will faithfully execute the duties of his office and pay over all moneys as provided by law. The law (§ 46 of the village charter [Laws of 18.86, chap. 81]) required him to pay over to the treasurer all moneys collected by him within the time fixed for the return of bis warrant. In the Tillinghast case the officer was required to faithfully disburse, safely keep and account for the moneys received by him. In the event of his default the treasurer was directed to sue the bond for the benefit of the town and to pay over the amount received to the town. There was nothing in the statute indicating that the officer giving the bond sued upon was to be held to any greater liability than an honest discharge of his duties and a faithful paying over of moneys not properly disbursed. In either case the measure of liability is the same, and there was no more ground for holding the supervisor liable as a debtor or otherwise in the TU■Unghast case than there is for holding the collector liable in the ■case now before us. This case cannot be distinguished from the Tillmghast case, and the rule there adopted must be applied to this.

As to the objection that the village of Oneida, as now reincorporated under chapter 620 of the Laws of 1891, has no right to maintain this action, we do not consider it well taken. The cause ■of action -which the village of Oneida, as incorporated under the former acts, had against these defendants was not destroyed by the repeal of such acts. The evident intent of the Legislature was to preserve all such rights to the village of Oneida under its new ■charter, and such we think it has done by section 10 of title 11 of such charter. It is there declared that the repeal of the former acts •shall not affect any privilege granted, or right vested,” when such repeal should take effect.

The judgment of the court below must be affirmed, with costs.

All concurred.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Parker, J.:

license: Public Domain

text:
    David K. McCarthy and Others, Respondents, v. Frederick P. Ockerman, Appellant.

      Replevin — property replevied by a sheriff cannot be replevied from him — sufficiency of tile description of the property in the affidavit.

    Where property is in the possession of a sheriff under a writ of replevin no person can take it from him by similar process.
    An affidavit in an action of replevin stated that the plaintiff was the owner and was entitled to the possession of “all the dry goods, notions, carpets, wall paper, crockery, boots and shoes, groceries, fixtures, safe and the personal property and effects of Parsons & Beach, in the Birdsall Block in the said village of Whitney’s Point; ” and that they were wrongfully detained from him. There was indorsed upon the affidavit a direction to the sheriff “to replevy the-chattels described in the within affidavit.”

      Held, that the requisition upon the sheriff to replevy was sufficient;
    That the sheriff would be protected in taking under it any property contained in the Birdsall Block which was formerly owned by Parsons & Beach, and which was then held and claimed by them, or which was held by any person for them;
    That, under the affidavit, the sheriff could easily and effectually identify each article which he was to take.
    Appeal by tlie defendant, Frederick P. Ockerman, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Broome on the 27th day of May, 1895, upon the decision of the - court rendered after a trial at the B.roome Circuit before the court and a jury. On the trial each party asked that a verdict be directed in liis favor, and the court dismissed the jury and adjourned the case to liis chambers for argument.
    This was an action in replevin brought against the defendant, the sheriff of the county of Broome, to recover certain chattel replevied by the defendant as such sheriff.

      PerMns & Parsons, for the appellant.

      Wilson (& Wells, for the respondents.
   Parker, J.:

Manifestly the plaintiffs in this action stand in the position of a third party claiming goods that the defendant claims to hold under replevin process issued to him as sheriff of Broome county. And within, the provisions of sections 1709 and 1710 of the Code of Civil Procedure, this action cannot be maintained against the defendant if his claim in that respect is correct.

The plaintiffs, however, insist that the requisition issued to the defendant does not authorize him to take the goods in question, and that it is utterly invalid for want of a sufficient description of the property in the affidavit upon which it was issued. The affidavit states that the plaintiff in that action, William Beach, is the owner and entitled to the possession of all the dry goods, notions, carpets, Avail paper, crockery, boots and shoes, groceries, fixtures, safe, and the personal property and effects of Parsons & Beach in the Birdsall Block, in the said village of Whitney’s Point,” etc., and no more specific description of property is given therein.

Upon such affidavit is indorsed a direction to the sheriff, Ocker-man, the defendant in this action, “ to replevy the chattels described in the within affidavit.” The action brought by Beach, and in which such requisition was issued, is brought against one member of the firm of Parsons & Beach and the Seymours, who then claimed to hold the property for the firm. Beach’s right to the property is based upon a bill of sale thereof, claimed to have been executed by the firm to himself, and the parties against whom the requisition issued are parties claiming to represent the firm, and to hold the goods for it.

The plaintiffs in this action contend that in the process in question the only property described or directed to be taken is the property of “ Parsons & Beach,” and that inasmuch as the property in question did not belong to “ Parsons & Beach,” it is not described, and is not included Avithin the requisition. It is not to be supposed that William Beach, by the use of the phrase goods, etc., of Parsons & Beach,” intended to describe the property which he sought to replevy, as being then owned by Parsons & Beach. A feAV sentences before this phrase occurs, he had sworn that such property Avas owned by himself, and that he Avas entitled to the possession thereof, and a few sentences thereafter he swears that such property was wrongfully detained from him by or on behalf of such firm. Read in such connection the fair interpretation of such affidavit is, that by the phrase, the goods, etc., of Parsons & Beach ” Avas meant the property generally known as theirs, and that the property really intended to be described was all the property then in the building known as the Birdsall Block, at Whitney’s Point, which recently belonged to such firm, and which they still claim to own and hold.

Being so construed, we -do not think that the requisition issued upon such affidavit was invalid.

As against the firm of Parsons & Beach, or those claiming to hold for them, the sheriff would be protected in taking any property in the Birdsall Block, so formerly owned and then held, and claimed by them. No trouble need arise as to his identifying the property intended. All property answering to that description was to be taken, and if a dispute arose.over any particular article, the question to be determined was simply whether it had formed part of their stock, and was still held and claimed by such firm. That was a fact which could be easily ascertained, and thus the means were at hand by which the sheriff could easily and effectually identify each article he was to take. There does not seem to be any reason, therefore, for holding the description insufficient, or the requisition invalid.

Although the plaintiffs in this action had, prior to the issuing of such writ, notified Parsons & Beach that they had rescinded the sale to them of the goods in question in this action, and had demanded from them a return thereof, nevertheless there had not as yet been any change of possession.

The sheriff found such goods, when he executed the writ in question in the Birdsall Block, in the possession of Parsons & Beach, and claimed by them to be a part of their stock, and there is no dispute but that they had been part of' such stock intermediate the sale to them and its rescission by these plaintiffs.

Nor is there any doubt but that the sheriff, the defendant in this action, took them upon such requisition, as part of the stock of Parsons & Beach, and made no claim to hold them, except by reason of such requisition. It is substantially so found in the ninth finding of fact, and so the evidence discloses.

As against Parsons & Beach the sheriff had the right so to take them, and because of such right they come within the provisions of sections 1709 and 1710 of the Code of Civil Procedure.

They had been replevied by the sheriff, and hence no action to replevy them from him can be maintained.

For this reason the judgment in the court below should be reversed, and a new trial granted, with costs to abide the event.

All concurred.

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


text:
    Clarence W. Wood and Others, Respondents, v. Sidney Sash, Blind and Furniture Company and Others, Appellants.

      Creditors action- — a complaint alleging several transactions with different parties, embraced in a single scheme to defra/ud — parties plaintiff and defendant — joinder of causes of action.

    Judgment creditors may bring a single action to reach property transferred to different persons by separate and distinct transfers, and in pursuance of separate and distinct agreements, provided that the acts which are made the basis of the complaint are alleged to have been done in pursuance of a single and forbidden scheme.
    The complaint in an action alleged that the plaintiffs were judgment creditors of the Sidney Sash, Blind and Furniture Company, an insolvent corporation, and that two certain banks and one Charles G. Brooks conspired with such defendant, the Sidney Sash, Blind and Furniture Company, to obtain for the banks, which were large creditors of the corporation, an unlawful preference, which was obtained by the insolvent corporation allowing judgments to be taken against it by the banks; that executions were issued thereon, and that all the personal property of such corporation was sold at an inadequate price, and that, after the application of the proceeds to the judgments of the banks, there remained a sum still due upon the judgments, which were a lien upon the real estate of the corporation; that in order to reach the book accounts and choses in action of the corporation it made a pretended sale of them to Charles G. Brooks for a nominal sum, which was less than half their value,.and that Brooks took an assignment of the same for the benefit of the banks; that Brooks was not a creditor of the corporation, and that he took and held the property solely for the benefit of the banks, and to enable.them to gain an unlawful preference. Demurrers were interposed to the complaint.

      Meld, that separate causes of action were not improperly joined; that the cause of action stated was properly based upon the assumption that the Sidney Sash, Blind and Furniture Company, being indebted to the plaintiffs in a lar^e amount, and insolvent, had, under an arrangement with the other defendants, unlawfully appropriated all its property to securing and preferring the debts of the two banks, and that, in the transactions by which it was done, Brooks had received and still held some of the property unlawfully applied;

      That, if there were but a single scheme, and that of the nature alleged, all persons might properly be made parties who participated in the transaction and received anything by, through or under it;
    That judgment creditors holding distinct judgments might unite in an action to set aside a conveyance by the common debtor, made in fraud of their rights as creditors.
    Appeal by tlie defendants, the Sidney Sasb, Blind and Furniture Company and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 25th day of June, 1895, upon the decision of the court rendered after a -trial at the Onondaga Special Term overruling the defendants’ demurrers to the plaintiffs’ complaint.

      Albert F. Gladding and Jaynes R. Bavmes, for the appellants.

      Albert T. Benedict, for the respondents.
   Parker, J.:

The complaint in this action avers that the plaintiffs are judgment creditors of the defendant, the Sidney Sash, Blind and Furniture Company; that the defendants, the First National Bank of Earlville, the Sidney National Bank of Sidney, N. Y., and Charles G-. Brooks, conspired together with the defendant, the Sidney Sash, Blind and Furniture Company, an insolvent corporation, to obtain for the said banks, which were large creditors of such corporation, an unlawful preference in the payment of their debts.

It then proceeds to state the manner in which that preference was secured, substantially as follows: Judgments in favor of the banks wepe suffered by the insolvent corporation to be taken against it, and through executions issued thereon all the personal property of the corporation that could be sold on execution was sold, and the price realized on such sale was applied upon the judgments. It is also averred that such property was bid off by the banks at a much less sum than it was fairly worth. Such judgments also became and still stand as prior liens to those of the plaintiffs’ judgments upon the real estate of such corporation. In order to reach the book accounts and choses in action of such corporation, a pretended sale was made to the defendant Brodks, of about $15,000 worth thereof, for the pretended sum of $7,000, and Brooks took an assignment of the same for the benefit of such banks. It does not appear that Brooks was a creditor of the insolvent corporation or had any interest in its property, or in any of the transactions above stated, save as an assistant to the banks. He took and holds the property so assigned to him solely for tlieir benefit and to enable them to gain an unlawful preference thereto.

The relief sought is that the judgments so obtained be declared void and of no effect as liens prior to those of the plaintiffs’ judgments; that the defendant banks account for and pay over to a receiver of the corporation all that they have received or taken under and by reason of such judgments ; and that said Brooks and the defendant banks account to such receiver for the value of the accounts so transferred to Brooks.

It is argued by the appellants’ counsel that such complaint improperly joins two causes of action; the one against the corporation and the banks to set aside the judgments so unlawfully suffered to be taken, and the transfer of property obtained through them, in which, the defendant Brooks has no interest whatever, and the determination of which cause of action would in no way affect Brooks; the other a canse of action to set aside the transfer of the accounts and dioses in action to Brooks, which he holds for the benefit of the banks and in which it would seem that all the defendants are interested.

It is true that the facts set forth in the complaint may be so grouped and arranged as to present the two distinct causes of action above stated, but it is also evident that the pleader had no such plan in his mind when lie drew such complaint. He based his right of action upon the fact that the defendant, the Sidney Sash, Blind and Furniture Company, being indebted to the plaintiffs in a large amount, and being utterly insolvent, had, under an arrangement with the other defendants, unlawfully appropriated all of its property to securing and preferring the debts of the two banks, and that in the transaction by which it was done Brooks had received and still holds some of the property so unlawfully applied.

The unlawful transfer, both through the sales under the j udgments, and the sale to Brooks, is treated asan actdoneinpursuance of one scheme, and the complaint is framed upon the theory that in equity a right existed on behalf of the plaintiffs to have anything that was .done in pursuance of that scheme adjudged fraudulent and void. and to require all those who had received any property through it to account for the amount so received. All persons are, therefore, made parties who did in any manner participate in such transaction, and received anything through it.

The following cases are a plain authority that such an action may be brought, and such a complaint sustained: Brinkerhoff v. Brown (6 Johns. Ch. 139): Fellows v. Fellows (4 Cow. 682); Boyd v. Hoyt (5 Paige, 65). True these cases were decided before the Code of Civil Procedure, but the ground upon which the decisions are put is that in such cases there is but one cause of action averred; and, if that be so, then such a complaint is not demurrable, on the ground that two causes of action are improperly joined. (See, also, the following cases decided since the Code of Civil Procedure: Holmes v. Abbott (53 Hun, 617); Oakley v. Tugwell (33 id. 357); Morton v. Weil (33 Barb. 30); Newbould v. Warrin (14 Abb. Pr. 80).

But even if the analysis of the complaint which the appellants’ counsel has made is the correct and only one of which it is susceptible, and the action must be deemed an attempt by judgment creditors to reach in a single action property unlawfully transferred to different persons by separate and distinct'transfers, and in pursuance of separate and distinct agreements, yet the case of Reed v. Stryker (12 Abb. Pr. 47) is a direct authority that such a complaint must be sustained.

That decision was made by the Court of Appeals deliberately overruling a judgment of this court to the contrary.

It was made while a section of the Code of Procedure, substantially like section 488 of the Code of Civil Procedure, was in operation, and it has never been modified or criticised by any decision to which our attention has been directed- On the contrary, it is accepted by Justice Mason as-having settled the rule in this State. (See Newbould v Warrin, 14 Abb. Pr. 86.) An examination of the report of the case in the 6th of Abb. Pr. 109 shows that the precise question was in that case which the appellants’ counsel raises in this, and notwithstanding his very able argument to the contrary, we must consider that case as decisive against him.

As to the claim that there is a misjoinder of parties plaintiff, the cases above cited seem to be decisive against it. (Also, see White's Bank of Buffalo v. Farthing, 101 N. Y. 344, 347.)

The judgment on the demurrers should be affirmed, with one bill of costs to the plaintiffs only, and the defendants should have leave to answer within twenty days after a certified copy of the order herein is served upon them, and upon payment of the cost of the demurrers and of this appeal.

All concurred.

Interlocutory judgments affirmed', with one bill of costs only to the plaintiffs, and leave granted to the defendants to withdraw their demurrers and answer within twenty days, upon payment of costs of the demurrers and of this appeal.


author: IIardin, P. J.:

text:
    American Central Insurance Company, Respondent, v. John B. Hagerty and Andrew M. Platt, Appellants.

      Insurance — instruction to an agent to cancel a policy — waiiier by the company of the agent’s failure to cancel it.

    Where upon the trial of an action the court refuses to submit any question to the jury, the party against whom judgment is rendered is entitled to the benefit of any evidence which would have justified the jury in finding in his favor and, in that connection, to any and all inferences that might legitimately be drawn, from such evidence.
    Notice to a general agent of an insurance company is notice to the company. The execution, by an agent of an insurance company, of a request made by the insurance company to him, that he cancel and return an existing policy, may be waived by the company; such waiver need not be based upon any new agreement nor upon an estoppel.
    In an action brought by an insurance company to recover damages of the defendants, local agents of the company, because of their failure to cancel a policy of insurance' pursuant to instructions given to them by the company, it appeared that the plaintiff, wishing to be relieved from the risk covered by such policy, wrote to the defendants by its general agents on July 9, 1891, to that effect, to which the defendants replied recommending that the policy be allowed to stand on the ground that they thought the risk a good one. Thereafter the general agents wrote two letters to the defendants, in which they asked that the policy be returned to their files, to which they received no answer. On August 26, 1891, the general agents drew upon the defendants for balances a draft which included the premium on the policy in question. It further appeared that the reports made by the defendants down to April, 1892, of policies which had been canceled showed that the policy in question had not been canceled, nor was the unearned premium ever returned to the insured-A loss under the policy having occurred in March, 1892, the general agents; mailed to the agent who had succeeded the defendants a blank proof of loss for execution, and in a subsequent letter stated that they had requested the company to send a draft for the loss.
    Thereafter, in June, 1892, the company commenced this action, upon the trial of which the court directed a verdict for the plaintiff.

      Held, that the direction of a verdict for the plaintiff was erroneous;
    That upon the facts presented by the evidence it was proper to submit to the-jury the question whether the plaintiff had not waived the demand for-a. cancellation of the policy.
    Appeal by tbe defendants, John B. ITagerty and another, from a. judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Chenango on the 26th day of March, 1894, upon the verdict of a jury rendered by direction of the court after a trial at the Chenango Circuit, with notice of an intention to bring up for review upon such appeal an order entered in said clerk’s office on the 10th day of April, 1894, denying the defendants’ motion for a new trial made upon the minutes and denying their motion for a dismissal of the complaint.
    Plaintiff is a foreign corporation having its principal place of business in the State of Missouri and duly authorized to transact, business in this State as a fire insurance company. Defendants-were its local agents at the village of Plattsburg, and while • acting-as such agents for the plaintiff they issued to Phillips & Casey, of Rouse’s Point, a policy of fire insurance, known as No. 450825, on certain personal property mentioned in the policy, by means of which the plaintiff became an insurer to the said Phillips & Casey for the sum of $1,000 against loss and damage by fire for the term, of one year in consideration of the payment of a premium of sixteen dollars and fifty cents.
    It is alleged in the complaint that on July 9, 1891, by virtue of the terms and conditions of the policy, the plaintiff directed the-defendants to cancel and discontinue the said policy, and that the defendants failed to carry out the directions thus given by continuing, or permitting to be continued, the policy, and that on March 4, 1892, the property mentioned in the policy was destroyed by fire, and the plaintiff became liable to and did pay to Phillips & Casey the sum of $977.15; and it is alleged that the defendants, by reason of the failure to obey the said orders and directions, have caused an injury to the plaintiff to the extent of the sum so paid less the amount of the premium.
    The answer contains several denials and also avers, “ Plaintiff afterwards, and prior to the fire and loss of the insured property, withdrew and waived such direction or request and continued and authorized defendants to continue the policy in question in force and accepted the premium paid by the insured, and also settled, adjusted and paid the loss under the policy.” At the close of the plaintiff’s case the defendants moved for a nonsuit, wdiich was denied and an exception taken; and at the close of the proof in the case the motion was renewed and denied and an exception taken. The defendants’ counsel then asked “ to go to the jury upon the question whether the receipt of the premium and this ratification and the other facts of the case, the correspondence and general course of business between the parties, do not show or would not show, and whether the jury should not find a ratification of the failure to cancel, if such order Avas given, and a Avaiver of it, or Avithdrawal of it; upon all facts of the case Ave ask to go to the jury; also, that the making of the proof loss itself, which perfected the claim against the defendants, or had that effect, Avould estop the plaintiff from claiming damages in this suit.” Thereupon the motion for a nonsuit Avas again denied and the defendants excepted. Whereupon the court directed the jury to find a verdict for the plaintiff, and the defendants excepted. A motion was made for a neAV trial on the minutes and denied. Judgment was entered upon the verdict. Defendants appeal from the order and from the judgment.

      Weeds, Smith cé Conway and T. F. Conway, for the appellants.

      Eugene Clvnton, for the respondent.
   IIardin, P. J.:

While considering the refusal of the court to submit any question of fact to the jury, we must give the appellants the benefit of any evidence which Avould have justified the jury in finding in favor of the defendants, and in that connection they are entitled to any and all inferences that might legitimately be drawn from the evidence produced. (McNally v. Phœnix Ins. Co., 137 N. Y. 389.)

Appellants were local agents of the plaintiff at Plattsburgh, acting under a written commission, and as sncli they issued the plaintiff’s, policy to the insured, which contained a provision, viz.: “ This policy shall be canceled at any time 'at the request of the insured, or by the company by giving five clays’ notice of such cancellation.^ It seems the premium for the policy was paid to the agents and by them paid over to the plaintiff. On July 9, 1891, plaintiff’s general agents, Yan Yalkenburg & Hall, wrote to the defendants, asking to be relieved of the risk because of certain reports as to the financial standing of the insured. To that communication, on the 13th of July, 1891, the defendants replied, recommending that the policy be allowed to stand on the ground that they thought the risk a good one, but adding that if it was insisted on, the policy would be canceled. To that letter the general agents replied on the sixteenth of July, stating that they preferred not to carry the risk and asking the return of the policy, assigning that their rule was not to carry mortgaged property as one of the reasons; and a somewhat similar letter was written again on July thirty-first asking for a return of the ]Dolicy to the files of the agents. The defendants did not answer the last two letters.

It seems by the evidence that on August 26, 1891, the -general agents of the plaintiff drew upon the defendants for balances and that in the draft was included the premium on the policy in question. It appears from the evidence that no further demand or claim was made on the part of the general agents upon the defendants for a return of the policy to be entered in the files of the defendants’ general agents, and there was quietude and acquiescence on the part of the general agents in respect to the policy in question which continued for a period of time between July thirty-first and the date of the fire, which was in March following. The reports for the months of August, September, October, November and December, 1891, and for January and February, 1892, were made, and on the face of the reports there was a recital of what policies were canceled, the report for June showing no policy canceled and the report for July showing policy No. 450683 canceled; the report of August shows no policy canceled; the report for September shows policy No. 450693 canceled; the report for October shows no policy canceled; the report for November shows policy No. 450698 canceled; the report for December shows two policies canceled, Nos. 450109 and 450711; the report for January, 1892, shows two policies canceled, viz., Nos. 450724 and 450725 ; the report for February, 1892, shows two policies canceled, viz., Nos. 450731 and 450732; the report for March shows three policies canceled, Nos. 450735, 450741 and 450742. It is to be observed that each of these reports shows that the particular policy in question, to wit, the one issued to Phillips & Casey, was not canceled, and that the reports were all sent to the general agents, to whom the monthly reports were made and to whom remittances were sent, and who had power to cancel policies, including the specific policy mentioned. Some evidence was given tending to show that in the course of the business, if instructions were given to cancel policies, unless the same' were immediately obeyed, the company’s habit was to renew its call or “ dun ” from time to time for the return of what they called a canceled policy until such time as they “actually got it,” and then the unearned part of the premium was included in the account current. There was some •conflict in respect to the custom or habit of the parties in respect to transactions relating to canceled policies. It is apparent from the reports that we have already alluded to, that the premium in this case was never charged back to the plaintiff and that the policy was never actually canceled. The general agent, Yan Yalkenburg, .admits that “ when a policy of insurance was canceled 'pursuant to one of my instructions or directions, it was the custom to return it to the office when the daily report went to New York to be put on file.”

It seems the local agents went out of business in April, 1892, and were succeeded by Platt, and the plaintiff about that time wrote for a full settlement, specifying the amounts due it, and that amount was ascertained and paid, but in the general settlement, and at no other time, were the defendants allowed or credited with the premium on the Phillips & Casey policy. ■ This settlement was after the- loss occurred under the policy, as that occurred March 4, 1892.

On the 8tli of March, 1892, the plaintiff having received notice of the loss under the policy, admitted the same and stated that “'general agent Yan Yalkenburg will be advised and requested to adjust.” On the 18th of March, 1892, Yan Yalkenburg wrote to the defendants in reference to it, and, among other things, he stated: “1 enclose a blank proof of loss and would thank you to return it to me here when properly executed, for the loss of Phillips & Casey at Rouse’s Point. By the way, there is a talk about this having been a £ queer ’ loss, and some field men are crowing over their smartness in getting off shortly before the fire. "What do you know in this direction ? * * * Thanking you in advance for attending to this matter, and with strongest assurances that you can count on me at. all times to do anything possible to promote our mutual interests, I beg to remain,” etc. Subsequently the general agent acknowledged the receipt of the proofs of loss, and in a letter dated May ninth he stated that he had asked the general office to send a draft in payment of the loss. It seems that the claim was made in behalf of the defendants that the defendants were in no way liable in the premises until June, 1892. It also appeared in the evidence affirmatively by the testimony of Platt, -that subsequent to July thirty-first he received requests to return other canceled policies, and nothing more, however, was said about the Phillips & Casey policy. It appeared from the evidence that there were instances in which policies were directed to be canceled with suggestions as to moral hazard, and that subsequently such directions were withdrawn at the suggestion of the defendants. Upon all the evidence we are inclined to the opinion that á fair question of fact was presented for the consideration of a jury as to whether the plaintiff, by reason of the circumstances disclosed, waived its request to have the policy canceled. "We are inclined to think that such waiver might have been found by the„jury upon the evidence given at the trial, and that it was not necessary, in order to support such a waiver, that it should be based ” upon any new agreement or an estoppel. (Titus v. Glens Falls Ins. Co., 81 N. Y. 419; McNally v. Phœnix Ins. Co., 137 id. 402; Cairnes & Lord v. Bleecker, 12 Johns. 300; Jervis v. Hoyt, 2 Hun, 637.)

From the course of business ‘ disclosed by the evidence it is quite apparent that Yan Yalkenburg liad notice of the non-cancellation and non-return of the policy to the files in his office, and that notice to him of that fact was notice to the principal. (Cox v. Pearce, 112 N. Y. 637, 641.) The non-action, therefore, of Yan Yalkehburg in the premises, his acquiescence as well as the acquiescence of the plaintiff in the non-cancellation and non-return of the policy, were pertinent facts for the consideration of a jury in determining the question whether the plaintiff had acquiesced in the existence of the policy and the omission of the defendants to procure a cancellation of the same .by the return of unearned premiums and a delivery of the policy to the defendants, to the end that it might be returned to the files of the plaintiff, whether kept by the general agent, Yan Yalkenburg, or kept by the plaintiff itself.

While it may be said that the circumstances are slight, we are inclined, as already intimated, to hold that a question of fact was presented which should have been submitted to the jury, and that the exception taken to the refusal to submit the question of fact to the jury presents an error which requires the granting of a new trial.

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

Martin and Merwin, JJ., concurred.

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


author: Hardin, P. J.:

text:
    Edward C. Wright, Respondent, v. The Syracuse, Ontario and New York Railroad Company and The New York Central and Hudson River Railroad Company, Appellants.

      Seal estate — effect of a grant by the State — constructive possession ■ — purchasers of pretended titles — trustee conveying in his individual name — equitable action to restrain trespasses and for fee damages — evidence as to the value of the premises affected — •relief against joint trespassers.

    Where the State of New York assumes to grant land, the effect of its conveyance is to be ascertained and declared as though the grant had been made by a private person.
    The possession of land not actually occupied is constructively in the holder of the title.
    The provisions' of section 130 of the Penal Code, making it a misdemeanor to sell a title to land unless the grantor has been in possession or has taken the rents or profits thereof for one year before the covenant to convey was made, are intended to prevent the purchase of pretended titles, and are not applicable to a case where the grantor and those claiming under him are and have been holders of a title derived through a grant from the State.
    Where a trustee, authorized by a will to convey lands, executes, in his own name, a conveyance thereof, referring to the will, it will pass all the interest in the premises theretofore held and owned by his testatór.

      Where a railroad is unlawfully constructed in a street, an abutting owner, whose title extends to the center of the street, may maintain an action in equity to restrain the defendant from unlawfully using the plaintiff’s land and for damages sustained by such use. In such an action the plaintiff may show the value ' of the premises affected by the occupation of the defendant.
    Where upon the trial of an action brought against two railroad companies for damages for alleged occupation and obstruction of the street in front of plaintiff’s premises, the incorporation of the defendants as alleged in the complaint and their operation of the road as therein alleged is admitted, there is no error in awarding to the plaintiff relief against both defendants.
    Appeal by the defendants, The Syracuse, Ontario and New York Railroad Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 9 th day of July, 1895, upon the decision of the court rendered after a trial at the Onondaga Special Term.
    This action was brought by an abutting property owner on Canal street in the city of Syracuse to recover damages for an alleged occupation and obstruction of the street in front of his premises, and to obtain a judgment directing the removal of the tracks operated by the defendants in such portion of said street. The judgment awarded six cents damages and fifty dollars for permanent fee damages to plaintiff for the occupation of the street in front of plaintiff’s premises, and enjoined the defendants from the use of said street, and directed the removal of the defendants’ track therefrom within sixty days, unless within the said period they should pay to the plaintiff or to his attorney the sum of fifty dollars, the sum adjudged to be the permanent fee damages to the plaintiff for the land in the street taken by the defendants.
    The action was begun on or about July 3,1890, and was equitable in its nature. The plaintiff claimed under a patent from the State of New York to one Sackett, dated IVIay 11, 1832. It appeared upon the trial that there was no actual occupation of the premises from 1843 to 1889, at which time the plaintiff purchased the property from one George A. Newell. It further appeared that George A. Newell, as trustee of Joseph Newell, deceased, conveyed the premises in question to the plaintiff by a deed which contained, among other things, the following provisions:

      “ This Indenture, made this 5th day of December, in the year of our Lord one thousand eight hundred and eighty-nine,
    “Between George A. Newell, executor and trustee of the estate of Joseph Newell, late of the county of Hillsborough, N. H., deceased, and-Newell, his wife, both of Boston, Mass., of the first part, and Edward 0. Wright of Syracuse, N. Y., of the second part * * *
    “ The said premises having been so conveyed to Joseph Newell, and he having died leaving a will in which party of the first part is named executor and trustee with power to convey.”
    The deed was signed “George A. Newell [l. s.], Elisa M. Newell [l. s.],” and acknowledged by them individually.

      Ashbel Oreen and Waters, McLennan dé Waters, for the appellants.

      E. O. Wright, respondent, in person.
   Hardin, P. J.:

It was found by the trial court that plaintiff owns “the land in what is now known as Canal street, between the center line thereof, and the south line thereof.” Upon studying the maps used at the trial and the evidence produced during the progress of the trial, we are of the opinion that the finding of fact is supported by the evidence. (Matter of Ladue, 118 N. Y. 213; 2 Am. & Eng. Ency. of Law, 507, subd. 6; Syracuse Solar Salt Co. v. R., W. & O. R. R. Co., 67 Hun, 153.)

The court properly found as matter of fact, that the plaintiff “ At the time of the commencement and of the trial of this action was, and for a long time had been, the owner in fee and entitled to the possession of the parcel of land” particularly described in the findings of fact, being the same lands described- in the plaintiff’s complaint. When the State assumed to grant the lands in question it acted as proprietor of the land, and the effect of its conveyance is to bd ascertained and declared as though the grant had been made by a private individual. (City of Oswego v. The Oswego Canal Company, 6 N. Y. 257, 265; Smith v. City of Rochester, 92 id. 463, 473.)

■ It was'competent for the plaintiff to become a purchaser of the lands and take a deed thereof from George A. Newell at the time he received the conveyance, and in doing so we are of the opinion that he did not violate the provisions of section 130 of the Penal Code, making it a misdemeanor to sell a title unless the grantor has been in possession, or has taken the rents and profits thereof for one year before the covenant to convey was made. That statute evidently was intended to prevent the purchase of pretended titles. Joseph Newell, deceased, had title to the premises described in his deed, and he died leaving a will creating a trust and authorized his son, George, to execute the trust, and to convey at public or private sale any lands owned by him. In making such conveyance we are of the opinion that George A. Newell did not violate the statute to which reference has been made. The possession of the lands constructively was in Joseph Newell at the time of his death, and subsequently in his trustee. (Bliss v. Johnson, 94 N. Y. 235.)

We think the conveyance executed by George A. Newell, by virtue of the power given to him in the will of Joseph Newell, was sufficient to pass to the plaintiff all the right, title and interest in the premises theretofore held and owned by Joseph Newell.

Appellants call our attention to the case of Townsend v. Corning (23 Wend. 435). In looking into that case we find that the facts are quite unlike those found in the case before us, and that the case does not sustain the contention of the appellants. We think it quite obvious that the testator intended to give George A. Newell power to convey any real estate left by the deceased, and his power to convey is derived from the will, and the conveyance refers to the will as the source of the power for its execution. (Bradstreet v. Clarke, 12 Wend. 603; 1 R. S. 737, § 124.)

In Myers v. Mutual Life Insurance Co. of New York (32 Hun, 321; S. C. affd., 99 N. Y. 1) it was held that where the power of attorney described the party “ as executrix and sole legatee under the will of M.,” and the executrix signed it simply in her own name, “the description was sufficient to show that it was executed by her as executrix and the failure to add her official character to the signature did not impair its effect.” We think the instrument executed by George A. Newell was sufficient to carry to the plaintiff all the right, title and interest in the premises theretofore held by the testator, Joseph Newell.

We are of the opinion that the defendants have failed to show a right to maintain the tracks, switches and obstructions upon the plaintiff’s land, and that the plaintiff as an adjacent owner is entitled to maintain this action according to the doctrine laid down by us in Syracuse Solar Salt Co. v. R., W. & O. R. R. Co. (67 Hun, 161). In the opinion there delivered it was said: “ Where a railroad is unlawfully constructed in a street, the adjacent owner, whose title extends to the center, it would seem, has three remedies: (1) He may bring successive suits to recover his damages; (2) he may bring an action in equity to restrain the operation of the road, or (3) when the highway has been exclusively appropriated, he may maintain ejectment. (Uline v. N. Y. C. & H. R. R. R. Co., 101 N. Y. 98.) That in cases like this, a suit in equity may be maintained to restrain the defendant from unlawfully using the plaintiff’s land, and f'or damages sustained by such use, is well established by the authorities in this State.” Upon the evidence before the court the damages were assessed at six cents and the value of the property at fifty dollars. We think the assessments are moderate and ought not to be disturbed on account of the amount thereof.

We think no prejudicial error was committed in receiving, evidence as to the value of the premises affected by the occupation of the defendants. The case before us differs widely from Roberts v. N. Y. E. R. R. Co. (128 N. Y. 455), as in that case a question was held to be improper which called for an opinion of an expert As to what would have been the value of plaintiff’s property had defendants’ road not been built and operated.”

During the progress of the trial an admission was made in the following language: The defendant admits for the purposes of this trial, the incorporation of defendants as alleged in the complaint, and the operation of the roads, tracks and sidings as alleged in the complaint.” Under that admission and the evidence which was received relating to the several acts of the defendants in the premises, we are of the opinion that there was no error in awarding relief against both defendants.

Our attention is called to Prouty v. L. S. & M. S. R. R. Co. (52 N. Y. 363). That was an action brought to recover a balance of certain dividends on certain guaranteed ten per cent stock, and is quite different from the case now before us.

Plaintiff was very moderate in his demand for damages “ on the argument, having waived all claim for actual past damages.” The award was made of six cents only, and the court finds that on the argument at the Trial Term the plaintiff limited his “request for future damages to $50,” and, therefore, only that sum was found' in favor of the plaintiff against tli'e defendants. By the second conclusion of law the defendants are given the option to pay the fifty dollars “ in full for the value of so much of the plaintiff’s interest in his land aforesaid in said street as is necessary to maintain the tracks and structures they are using therein, and to store, use and operate engines and cars in the same manner as heretofore has been done.” In the event that the option is availed of, the plaintiff is required to execute, acknowledge and deliver a deed at his own expense to the defendants, or such parties as they may desire, releasing his interest in the land in the street. The judgment seems to be in accordance with the justice of the case as revealed by the evidence.

Martin and Merwin, JJ., concurred.

Judgment affirmed, with costs.


author: Hakdin, P. J.:

text:
    Edwin Wilcox, Respondent, v. Wilbur H. Selleck, as Sheriff of Oswego County, Appellant.

      Witness — credibility of testimony given by parties and their relatives.

    A jury is not bound to believe an improbable statement made by a witness, nor a statement made by one who lias an interest in the question at issue.
    The jury may scan, doubt and question statements made by parties in interest in a suit, as well as those made by their near relatives, who are interested in the success or failure of the action in which they are witnesses.
    Appeal by the defendant, Wilbur H. Selleck, as sheriff of Oswego ■county, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oswego on the 22d day of January, 1895, upon the verdict of a jury rendered by direction of the court after a trial at the Oswego Circuit.
    The action was in replevin to recover a threshing machine and some other personal property mentioned in the complaint. The defense was a denial of the plaintiff’s ownership, and, secondly, an allegation that the sheriff, in virtue of an execution issued upon a judgment rendered in favor of Alfred B. Tuttle against Eugene R, Wilcox, the father- of the plaintiff in this action, had levied upon the property as the property of Eugene B. Wilcox, the judgment debtor. Proof was given of the judgment and of the execution and of the levy. It was agreed that the value of the property was $500, and the damages for detention were fifty dollars, and pursuant to the direction of the court the jury found “ that the plaintiff was the owner and 'entitled to the possession of the property described in the comjdaint at the time the same was levied ” upon by the defendant as sheriff. At the close of the evidence, when the court directed the jury to find a verdict that the title to the property was in the plaintiff, and that at' the time of the commencement of the action he was entitled to the possession thereof, and that as owner he was entitled to the possession, the defendant took an exception and asked to go to the jury on the question whether the plaintiff was the owner and entitled to the possession ; the request was refused andan excejffion was taken. Defendant then asked to go to the jury upon all the questions of fact in the case, which request was refused and an exception was taken. Judgment was entered upon the verdict and the defendant appealed.

      Willimn M. Boss, for the appellant.

      8. B. Mead, for the respondent.
   Hakdin, P. J.:

A carefu 1 perusal of the evidence leads to the conclusion that there was some evidence given upon the trial which, if accredited by the jury, would have warranted a verdict in favor of the defendant. Several witnesses were called who gave testimony which, if accepted entirely as given, would warrant us in sustaining the verdict as directed. The plaintiff and his father were so situated with reference to the controversy that the jury would have been authorized to disbelieve their testimony in part or in whole.

We think the question of their credibility was for the jury, and that a case was presented which ought to have been submitted to the jury as to whether the ownership of the property at the time of the levy by the sheriff on the execution against Eugene B. Wilcox was in Eugene B. Wilcox, or whether it was in the plaintiff. (Elwood v. Western Union Tel. Co., 45 N. Y. 549; Longyear v. The U. S. Life Ins. Co., 20 Wkly. Dig. 165; Michigan Carbon Works v. Schad, 38 Hun, 71; Dean v. Van Nostrand, 23 Wkly. Dig. 97; Roseberry v. Nixon, 58 Hun, 121; Quock Ting v. United States, 140 U. S. 422; Goldsmith v. Coverly, 56 N. Y. St. Repr. 859.) The rule seems to be quite well settled that a jury is not bound to believe an improbable statement made by a witness or a statement made by a witness who has an interest in the question at issue, and that juries are at l.berty to scan, doubt and question statements made by parties in interest in a suit, as well as their near relatives, who are interested in the success or defeat of the action in which they are called upon to testify.

Evidence was given by the witness Stephenson and the witness Blake, who testified to a conversation in the presence of the plaintiff which, to a considerable extent, tended to support the theory of the defendant that, at the time of the levy Eugene R. Wilcox had an interest in the property levied upon. We think the judge at the trial committed an error in refusing to submit the question of fact to the jury. (Powers v. Silverstein,, 108 N. Y. 169; McCann v. Sixth Ave. R. R. Co., 117 id. 505.)

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

Merwin and Parker, JJ., concurred.

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


text:
    George C. Sherman, Respondent, v. The Adirondack Railway Company, The Adirondack Extension Railway Company, Horace G. Young, Nathan Strauss, Francis G. Babcock, Samuel J. Tilden, Clarkson C. Schuyler and William R. Weed, Appellants.

      Change of venue — grant of right of way by the Forest Commission — disagreement among the members of the commission as to the place of trial of an action to annul their grant — notice of motion must be served on all pan'ties, plaintiff and

    An action brought by a citizen of the State of New York, in which he seeks the annulment of the grant of a right of way in the Adirondack preserve made by the Forest Commission to a railroad corporation, is an action which affects real property, and must be tried in the county in which the lands in question are situated.

      Semble, that where a grant of a right of way is void upon its face, a court of equity will not interfere to remove it, because the instrument can work no mischief; and that the samo rule would apply, although the invalidity did not appear upon the face of the instrument, if it necessarily appeared in some one of the links of title which the claimant would have to establish in order to give the instrument effect.
    Upon a motion made to change the place of trial of an action from the county of Jeffiersou to the county of Essex, it appeared that the action was brought against two railroad corporations and the members of the Forest Commission to annul the grant of a right of way made by the Forest Commission to the said corporations, and that the corpoi’ations and thx-ee members of the Forest Commission (who were represented by one attorney) wished the action to be tried in Essex county, where the lands in question were situated, while the two remaining members of the Forest Commission (represented by two separate attorneys) desired that the action be tried in Albany county, the official location of the Forest Commission.
    It further appeared that the respective parties defendant had not served notices of their motions to change the place of trial upon all of their co-defendants.

      Held, that the court would not finally determine the question until all the parties to the action had received notice of the motions made by the several defendants.»
    Appeal by the defendants, The Adirondack Railway Company and others, from an order of the Supreme Court, made at the Onondaga Special Term and entered in the office of the clerk of the county of Jefferson on the 8th day of July, 1895, denying their motion to change the place of trial of this action from the countv of Jefferson to the county of Essex.
    The action was commenced on the 31st of December1,1894. The place of trial named was Jefferson county. The two corporations and Young appeared by an attorney residing in Albany, who served an answer,, and the defendants Tilden, Schuyler and Weed, constituting a majority of the Forest Commission, appeared by an attorney residing in Saratoga; Nathan Strauss appeared separately by an attorney residing in Watertown, and Francis G. Babcock appeared separately by an attorney residing in Ilornellsville.
    At the time of serving an answer a demand in writing by the defendant corporations and Young for a change of the place of trial from the county of Jefferson to the county of Essex was served, to which, after the lapse of more than five days, no consent was given.
    The defendants Tilden, Schuyler and Weed, representing a majority of the Forest Commission, servéd their answer, in which they assert the legality and propriety of the proceedings granting a right of way to the defendant corporations, and with their answer served on the attorneys for the plaintiff a demand in writing for the change of the place of trial from Jefferson to Essex county, on the ground that the latter is the proper county for the trial.
    The corporations and a majority of the Forest Commission, in pursuance of their demands therefor, moved to change the place of the trial of the action from Jefferson to Essex county, “on the ground that the latter was the proper county, because the aetion affected an interest in real estate situated in the county of Essex.” The motion came on to be argued at the Onondaga Special Term and was denied, and the moving defendants appeal from that order.
    The minority defendants, Strauss and Babcock, gave notice of a motion to change the place of trial to Albany county, which was heard and denied at the same time as the other motion.

      Lav is E- Carr, for appellant companies and Horace G. Young.

      Edgar T. lira elicit, for a majority of the Forest Commission.

      James A. Ward* for the appellant, Nathan Strauss.

      D-. G. Griffin,, for the responden'.
   Hardin, P. J.:

Plaintiff in his complaint alleges that he is “ interested in the lands constituting what is known as the forest preserve and the Adirondack park, situated in the counties of Essex, Herkimer, Hamilton, Franklin and Lewis * * * and has a special interest in lands which are embraced within the boundaries established by the forest commission as the boundaries of the Adirondack park.” He also alleges the appointment of Strauss, Babcock, Tilden, Schuyler and Weed as commissioners under chapter 332 of the Laws of 1893. The complaint also alleges that The Adirondack Railway Company, by Young, its vice-president, presented to the defendants Weed, Schuyler and Tilden, who assumed to act as commissioners, a petition which is set out in the papers, and that the commissioners assumed to act and placed upon the records of the commission a resolution at the office of the commission on December 27, 1894, and that the resolution remains on the minutes of the commission. The complaint also alleges that when Weed, Schuyler and Tilden assumed to meet as such commission “ no lawful meeting of said commission had been called or authorized.” The complaint also alleges “ that no sufficient legal notice was given 'to the defendants Babcock and Strauss of such meeting, and the other- members of the commission had no lawful right or authority to meet or act in their absence, and all the acts done by said defendants at said meeting with reference to said petition, resolution and acceptance thereof were without authority and void.” The complaint further alleges that “ the lands described in said petition and resolution constitute the most valuable part of said park and preserve; * ,* * it is the purpose of said defendants, the said railway companies and the said Young, to enter upon said lands and denude them of their timber and of growing trees and devastate said lands, and not only destroy what may be growing thereon, but also to prevent any future growth of timber and trees thereon.” Plaintiff claims to brings-this action in his own behalf and “ in behalf of all the other people of the State who are interested in the preservation of said park and preserve.” The complaint further avers that the petition, resolution and acceptance of the defendant railway companies, “ so long as they exist and remain upon the files and records of the said forest commission, constitute a cloud upon the title of the plaintiff, and of the people of the State, to said lands, and, if not canceled, will seriously interfere with the vested rights and privileges of the plaintiff in and to said lands, and embarrass him in his enjoyment of the same, because, under color thereof, the said railway companies will seek to exclude him from the free use of said lands in the manner jn’ovided for by law.” In the prayer for relief the plaintiff demands judgment; “ that it be decreed that the aforesaid resolution * * * and the acceptance thereof by the defendants’ railway companies * * * and the said petition and the filing and record thereof, and all entries upon the files and minutes and records of the said forest commission relating thereto, be declared null and void, and be canceled and expunged from the files and -records of said forest commission; and that the defendants’ railway companies and the said Young be perpetually enjoined and restrained from entering on the lands described therein, or any part thereof, and from using the same for any uses and purposes of the defendant companies; and from asserting or attempting to assert, any claim of possession, or right of possession to said lands under or by virtue of said resolution and acceptance.”

It appears that the defendant corporations, as soon as the resolution was passed, accepted the grant of a right of way mentioned in the resolution “subject to the terms and conditions in such grant imposed, and hereby on their part promise and agree to conform thereto and comply therewith.” In the answer of the corporations, they aver that the commission convened pursuant to due notice of such meeting and that the commissioners were acting in conformity with law in the discharge of their duties, and that the “ forest commission had full power and authority to grant the defendant companies a. right of way over said lands, for railroad purposes, on such terms and conditions as to that body might seem just.”

The answer of the defendants Weed, Tilden and Schuyler contains similar averments to the answer from which quotations have already been made; and they deny “ that there was anything improper or irregular or illegal in their action, but, on the contrary, they aver that said action was strictly within their legal power; that the same was and will result in a great good to the people of the State, including this plaintiff, and will not in any degree impose any tax upon the plaintiff, nor will it result in any diminution of rainfall, or in any storage power for rainfall or for the head waters of the streams of the State, different from what existed prior to said grant.”

The defendant Babcock in his answer seems to question the valid-' ity of the action of the majority of the Forest Commission, and demands judgment “that the aforesaid resolution * * * and the acceptance thereof by the defendants railway company * * * and the said petition, the filing and record thereof, and all entries upon the files and minutes and records of the said forest, commission relating thereto, be declared null and void, and be canceled and expunged from the files and records of said forest commission.”

The defendant Strauss served an answer containing somewhat similar allegations and .demanding somewhat similar relief to that mentioned in the answer of the defendant Babcock.

It seems from the complaint and answers that the subject-matter involved is a right of way over lands situated in the county of Essex, and that the relief sought is the anullment of the grant of the right of way made by the Forest Commission. It is clearly .averred that the action of the Forest Commission and of the corporate defendants creates a cloud upon the title of the State to the lands, and it is apparent that the plaintiff seeks a judgment declaring the resolution and proceedings under it void. If the petition, resolution and proceedings under it are void on their face, it is difficult to see how the plaintiff can sustain an action to have the same ■canceled as a cloud upon title. (Scott v. Onderdonk, 14 N. Y. 9.)

In Fonda v. Sage (48 N. Y. 179) it is said: “ There is one rule however, which is fully settled and now uniformly followed in this State; and that is, if the instrument claimed to constitute the cloud is void upon its face, a court of equity will not interfere to remove it, because such an instrument can work no mischief; and the same is true, although the invalidity does not appear upon the face of the instrument, if it necessarily appears in some one of the links of title which the claimant would have to establish in order to give the instrument force and effect.” However, it is not necessary for the purpose of this appeal to determine whether the plaintiff can succeed in maintaining an action on the equity side of the court to have canceled the petition, resolution and acceptance thereunder referred to in the complaint, and that question will more appropriately be determined when the issues are brought to trial.

Apparently the scope of the plaintiff’s complaint brings the case within section 982 of the Code of Civil Procedure. In that section it is provided that an action to recover, or to procure a judgment, ■establishing, determining, defining, forfeiting, annulling or otherwise affecting an estate, right, title, lien or other interest, in real property or a chattel real,” must be tried in the county in which the subject of the action or some part thereof is situated. In that aspect of the case the plaintiff seeks to remove a cloud on the title, and seeks to invoke the aid of equity to guard the title to the lands mentioned in the complaint. If liberality is extended to the interpretation of the plaintiff’s complaint, it brings the conclusion that it is an eqiritable action brought to secure the power of the court to prevent the corporate defendants from taking possession of the lands mentioned in the resolution. It would seem, therefore, that the plaintiff’s cause of action falls within the provisions of section 982 of the Code of Civil Procedure. In the course of the opinion delivered in Hogg v. Mack (53 Hun, 463), which was an action to recover money, it was observed that the clause to which reference has been made refers to actions “ in which the judgment which is sought is one that by its very terms, or by reason of its form and by virtue of the express provisions therein contained, will affect the title to real property or some interest therein.” (See, also, Kearr v. Bartlett, 47 Hun, 245.)

The foregoing views seem to lead to. the conclusion that the corporate defendants were entitled to have"- the cause of action alleged against them brought to trial in the county of Essex, unless by reason of the rights of the other defendants the action ought to be tried in the county, of Albany where the proceedings on the part of the Forest Commission were had. In determining the rights of the two non-consenting defendants, effect- should be given to the fact that a majority of the commission, by the position taken upon the motion, seem to consent and request that the place of trial be had in the county of Essex. This presents an interesting question as to whether a majority of the commission can control the place of trial against a minority claiming tor have certain rights which allow them to assert that the trial should be in the county in which the alleged official acts were performed. Apparently that question was not so presented to the Special Term that it could be authoritatively determined. It does not appear that the respective parties moving for a change from Jefferson to Essex county gave notice of their motions to all their co-defendants; and, situated as this case was after the answers were served by the several defendants, we are of the opinion that the motion could not properly be determined when made by the corporate defendants to change the venue to Essex county without notice thereof to Babcock; nor could the motion made by Babcock and Strauss to change the venue from Jefferson to Albany county be properly determined until notice thereof was given to the other defendants. It is apparent that the notices of motions given by Babcock and Strauss were served only on the plaintiff’s attorneys. In the absence of such notices as we have alluded to we are of the opinion that we ought not to conclnsively determine the merits of the motions until each party shall have received notice of the motions made by the several defendants. We are, therefore, of the opifiion that both orders appealed from should be set aside, without prejudice, however, to the defendants, respectively, upon proper notice of motion, to apply to have the place of trial changed from Jefferson county.

Martin and Merwin, JJ., concurred.

Orders reversed, without costs to either party, and without prejudice to further application to change the place of trial from Jefferson county after notice shall be given of the claims of the respective parties to all persons appearing in the action.


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    The People of the State of New York, Respondent, v. Edward Hurlburt, Appellant.

      ■Grand la/rceny — proof of simila/r offenses not related nor contemporaneous is inadmissible.

    Where a person is indicted for the commission of the specific crime of grand, larceny, proof of acts and transactions of a similar nature, not contemporaneous with the acts alleged in the indictment and not connected with them or with the testimony given in support of them, is inadmissible.
    The indictment is all that the defendant is expected to come prepared to answer, and the introduction of evidence of other and extraneous crimes is calculated to take the defendant by surprise and to do him manifest injustice, by creating a prejudice against his general character.
    Appeal by the defendant, Edward Hurlburt, from a judgment of the Court of Sessions of the county of Oneida, entered in the office of the clerk of the county of Oneida on the 8th day of August, 1895, convicting him of the crime of grand larceny in the first degree.
    The defendant ivas convicted of the crime of grand larceny in the first degree, alleged to have been committed in the city of Utica on the lJth day of December, 1893. The indictment charged that he “ wrongfully, unlawfully and feloniously, did then and there embezzle and appropriate to his own use and did steal, take and carry away of said moneys, property, evidences of debt and contract, articles of value, things in action and possession, the sum of $1,125.” The defendant was sentenced to the Auburn State prison for the term of four years and nine months. The appeal book contained all the evidence given upon the trial.
    On the 14th of April, 1888, Margaret 0. Lovett gave to Lane E. Eerguson a bond and mortgage conditioned for the payment of $1,425, payable five years from May 1, 1888, with interest at six per cent, payable semi-annually, with payments on account of principal of uot less than $100 a year from May 1, 1888. The bond and mortgage, after they' were executed, were left with the defendant for about a year, and then they were taken by Mrs. Eerguson, and by her retained until about December, 1893, when they were again turned over to the defendant, and he collected principal and interest on" the bond and mortgage as the payments came due, aud during the first three years he sent $100 of principal and semi-annual interest to Mrs. Ferguson. Thereafter, upon receiving payments of principal upon the bond, he retained the same under an alleged agreement with Mrs. Eerguson, by which he was to pay her the interest upon the moneys until the spring of 1894, when a mortgage of $2,200, given by Mrs. Eerguson to one Mrs. Owen, matured. Mrs. Eerguson executed several receipts for principal and interest down to the payment of May, 1892. At about that time the defendant was taken sick and confined to his house, and in December, 1893, the defendant, being sick, was called upon by Mrs. Eerguson. At the trial it was claimed that Hurlburt came into possession of the moneys legitimately, and a grave question was made whether he had authority under an agreement, either express or implied, with Mrs. Eerguson, to use the money by him received, and whether the relation between them was that of principal and agent or was by her consent changed to that of debtor and creditor.
    During the trial the Eeople were allowed, against the objections and exceptions taken by the defendant, to introduce evidence of Louise Kilts and Charles IL Tates, tending to prove that the defendant, at some other times,. had committed other crimes of a similar character to the one charged in the indictment. The evidence was received, and the trial judge, in the course of his charge to the jury, said of this evidence : “ It was received for the purpose of showing criminal intent in appropriating it to his own use, if you find that he did so appropriate it, and it is only as bearing upon that question that you have the right to consider this evidence.”

      Jones da Townsend, for the appellant.

      George S. JTlocle, District Attorney, for the respondent.
   Hardin, P. J.:

Defendant was charged with the crime of grand larceny in that he had violated section 528 of the Penal Code. That section provides that a person shall be guilty of larceny, if with intent to deprive or defraud the true owner of his property “or to appropriate the same to the use of the taker,” he, having “in his possession, custody or control, as a bailee, servant, attorney, agent, clerk, trustee or officer of any person, association or corporation, or as a public officer, or as a person authorized by agreement or by competent authority, to hold or take such possession, custody or control any money, property, evidence of debt or contract, article of value of any nature, or thing in action or possession, appropriates the same to his own use, or that of- any other person other than the true o.wner or person entitled to the benefit thereof.” That section was explained and construed in People v. Moore (37 Hun, 84) and in People v. Civille (44 id. 498). Under that section the precise question for determination under the allegations of the indictment was whether the defendant had, with intent to defraud Mrs. Ferguson of her money, appropriated the same to his own use. That was the specified crime charged in the indictment and was the one he was called upon to meet at the trial thereof.

In People v. Sharp (107 N. Y. 458), Danforth, J., said : “ It is indeed elementary law that no evidence can be admitted which does not tend to prove the issue joined, and the reason and necessity of the rule are much stronger in criminal than in civil cases for the observance of this rule and of confining the evidence strictly to the issue. The indictment is all that the defendant is expected to come prepared to answer. Therefore, the introduction of evidence of another and extraneous crime is calculated to take the defendant by surprise and do him manifest injustice by creating a prejudice against his general character.” The evidence of Mrs. Kilts and Mr. Yates were of acts and transactions not contemporaneous with the acts alleged in the indictment; nor did they have any connection with the transactions alleged in the indictment or disclosed by the evidence of Mrs. Ferguson. The evidence related to independent transactions quite remote from the one alleged in the indictment. We are of the opinion that the evidence of Yates and Kilts, was prejudicial to the rights of the defendant, and that its reception and consideration by the jury were prejudicial to the defendant.

In People v. Drake (20 N. Y. Supp. 228) our views were expressed in respect to evidence of transactions in no way connected with the crime alleged in the indictment.

The learned district attorney calls our attention to People v. Murphy (135 N. Y. 451), which was a case where the defendant was convicted of the crime of arson in the third degree upon circumstantial evidence, and the evidence given that was the subject of criticism related to injuries to personal property “ upon the same night that the fire occurred and by the incendiary and as a part of the same criminal scheme which resulted in the destruction of the barn.” In that case the court observed : “ Under such circumstances the evidence was competent. (Hope v. People, 83 N. Y. 427.) It very clearly tended to prove that the fire was not accidental; that its origin was instigated by malice and not from the desire of gain; that it was kindled by some pei'son having the intimate knowledge of the defendant in regard to the situation of the property, and it was properly received even though it may have tended to establish the defendant’s guilt of another crime than the one set forth in the indictment on trial.” We think the case is quite unlike the one before us.

The learned district attorney also calls our attention to the case of The People v. Harris (136 N. Y. 423). In that case the evidence that was the subject of criticism was given for the purpose of showing the defendant’s relations and feelings towards his wife as evidenced by his conduct on a given occasion. 'The evidence tended to show “that the defendant had ceased to hold his wife in such affection as the law presumes to 'exist from married relations.” We think it is distinguishable from the case in hand. Nor do we think anything found in the opinion in the case of The People v. Wilson (141 N. Y. 185) aids the district attorney. The transactions detailed by Yates and Kilts are remote from the transaction mentioned in the indictment; nor have they any intimate relation to the transaction with Mrs. Ferguson. The evidence was received contrary to the rules laid down in People ex rel. Willis v. Justices, etc. (10 Hun, 158).

In Copperman v. People (56 N. Y. 593), Church, Ch. J., observed: '“It is a general rule, and one that should be strictly observed, that : it is incompetent upon the trial for one offense to prove that the accused has committed another not connected with it.”

We ought not to say that the evidence thus improperly received was not prejudicial to the defendant. He was entitled to a trial of the precise offense alleged in the indictment, and the indictment did not call upon him to be ready to meet accusations remote in point of time or dissimilar in character to the one specifically charged in the indictment. (People v. Wood, 126 N. Y. 249, 254; People v. Altman, 147 id. 473, 477.)

The foregoing views lead to the conclusion that the conviction -and judgment ought to be reversed and a new trial granted. Conviction and judgment of the Court of Sessions of Oneida.county should be reversed, and a new trial granted, and the clerk directed to enter judgment and remit certified copy thereof, with the return and «decision of this court, to the Court of Sessions of Oneida county .pursuant to sections 547 and 548 of the Code of Criminal Procedure.

Martin and Merwin, JJ., concurred.

'Conviction and judgment of the Court of Sessions of Oneida rcounty reversed and a new trial granted, and the clerk directed to ■enter judgment and remit certified copy thereof, with the return and decision of this court, to the Court of Sessions of Oneida county, pursuant to sections 547 and 548 of the Code of Criminal Procedure.


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    Sabina Carpenter, Respondent, v. Andrew B. Miles, Appellant.

      New trial —discretionary order denying a motion for a new trial made in a County Court — when not reversed on appeal to the Supreme Court.

    A motion for a new trial, made in a County Court and based upon excessive damages, is one which is addressed to the discretion of that court, and, being a matter resting in discretion, will not be reversed on appeal by the Supreme Court unless there has been an abuse of discretion in the County Court.
    Appeal by the defendant, Andrew B. Miles, from a judgment of the County Court of Jefferson county in fay or of the plaintiff, entered in the office of the clerk of the county of Jefferson on the 1st day of April, 1895, upon the verdict of a jury, and also from an order hearing date the 28th day of March, 1895, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.
    This action was.brought to recover damages for an alleged assault and battery. The plaintiff recovered a verdict for $500.

      John Conboy, for the appellant.

      Isaac B. Breen, for the respondent.
   Hardin, P. J.:

We have looked carefully through the evidence given at the trial, and are of the opinion that it sustains the verdict. It was for the jury to resolve the sharp and stubborn conflict furnished by the different witnesses. The charge of the learned county judge fairly presented the questions of fact to the jury, and he instructed the jury tliat if they found malice on. the part of the defendant, they might give punitive damages. We are not willing to disturb the verdict by reason of the amount thereof, to wit, $500. Besides the motion for a new tidal as to the extent of the damages, was addressed to the discretion of the County Court. We ought not to disturb the conclusion reached by that court in the exercise of its discretion. (Code, § 1340, as amended in 1895; Thomas v. Keeler, 52 Hun, 318; Tucker v. Pfau, 70 id. 59; Kincaid v. Richardson, 25 id. 237; Wright v. Chase, 77 id. 90; Reilley v. D. & H. C. Co., 102 N. Y. 383; Clark v. Eldred, 51 Hun, 5.)

No exceptions were taken during the trial which justify us in interfering with the verdict of the jury.

Martin, J., concurred; Merwin, J., concurred in the result.

Judgment and order affirmed, with costs.


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    Meyer Rubber Company, Appellant, v. The Lester Shoe Company and The Lestershire Boot and Shoe Company, Respondents.

      Costs — extra allowance — discretionary with the trial court — recovery of less than the amount claimed.

    The question whether an action should be regarded as difficult and extraordinary-rests substantially in the judgment and discretion of the justice to whom the application is made, and the determination of the question ordinarily involves so many considerations which are addressed to his discretion that the appellate court will rarely interfere with his determination.
    In such a case the fact that the prevailing party recovered a much smaller sum than he claimed may be allowed to influence the decision of the justice.
    Appeal by the plaintiff, the Meyer Rubber Company, from an order of the Supreme Court, made at the Madison Special Term and entered in the office of the clerk of the county of Broome on the 15th day of July, 1895, denying the plaintiff’s motion for an extra allowance.
    This was an action in replevin to recover the possession of property alleged to be of the value of $38,179.68. The greater part of the property claimed by plaintiff was found by the sheriff, and was delivered to plaintiff, the value thereof, as plaintiff alleged, being $37,410.03.
    The .action was based upon plaintiff’s alleged right to rescind a sale of rubber goods made to the defendant, the Lester Shoe Company, upon the grounds that the sale and delivery of the goods had been procured by false and fraudulent representations as to the solvency of that defendant and with the intent not to pay therefor, and to cheat and defraud the plaintiff. The goods were transferred by the defendant, the said Lester Shoe Company, to the defendant, the Lestershire Boot and Shoe Company, and it was claimed upon plaintiff’s part that the whole transaction was part and parcel of a fraudulent scheme to cheat and defraud plaintiff and others, conceived and entered into by one Harry G. Lester, who composed the old firm of Lester & Co., and who originated and controlled, and was in fact, the sole owner and factor in the two corporations named as defendants in this action.
    A defense was interposed upon the part of each defendant, by separate answers, whereby the fraud was denied, and the action was tried at the Broome Circuit, commencing April 30,1894, before Mr. Justice Forbes and a jury, and resulted in a verdict for the plaintiff, awarding to it possession of the property recovered and delivered to it by the sheriff, and fixing its value at $37,410.03.
    After the rendition of the verdict the defendant, the Lestershire Boot and Shoe Company, asked for time in which to prepare a proposed case and exceptions, upon which to make a motion for a new trial, and at the same time the plaintiff moved for an exti’a allowance upon the ground that the case was both difficult and extraordinary, and the court thereupon gave the said defendant ninety days additional time in which to prepare a case and exceptions upon which to move for a new trial, and directed that both defendants’ motion for a new trial and plaintiff’s motion for an additional allowance should be made before him at his chambers, and an order to that effect was there made.
    The time allowed for the preparation of a proposed case and exceptions having expired, and no renewal or extension thereof having been sought by the defendants, and no motion having been made by them for a new trial, plaintiff made a renewal of its motion for an additional allowance, which was heard by Mr. Justice Forbes at an adjourned Special Term, at his chambers on September 29, 1894, and an order was there made denying plaintiff’s application, with leave to renew under certain conditions.
    From that order the plaintiff appealed to the General Term, which affirmed the said order in April, 1895, without costs and without prejudice to an application by the plaintiff for leave to renew its motion for an extra allowance.
    The plaintiff thereafter noticed a motion for the Madison Special Term, on June 11, 1895, for leave to renew its motion for an additional allowance, and upon that day plaintiff’s attorneys and counsel appeared before Mr. Justice Forbes, presiding at said term, he being the justice before whom the trial herein was had, and the court at that time entertained a motion for an additional allowance and there made the order appealed from.
    In the order appealed from are found the iollowing words: (i Ordered, that the court hereby entertains said motion for additional allowance of costs herein, and hereby denies the same, with $10 costs of the motion.” The order was certified to and entered on the 15th day of July, 1895, in the clerk’s office of Broome county.

      T. B. da I. M. Merchant, for the appellant.

      Carver, Deyo <& Jenkvns, for the respondents.
   Hardin, P. J.:

On the 23d day of April, 1895, we affirmed an order made by the same trial justice, refusing an extra allowance. In the course of the opinion delivered on that occasion in behalf of this court it was said: “ The affidavits produced upon the motion tend to indicate that the case was difficult and extraordinary.” And it was further observed in the opinion that so many considerations are addressed to the discretion of the court upon such motions that the appellate court rarely interferes with the action of the trial judge; and in support of that position we cited Morrison v. Agate (9 Wkly. Dig. 286) and Tolman v. S. B. & N. Y. R. R. Co. (31 Hun, 397, 403). And we affirmed the order then before us with the suggestion that the question could not be well answered except upon mature consideration of all the proceedings and affidavits relating to the questions which were before the trial judge ; and we gave leave to the plaintiff to apply at Special Term for leave to renew its motion. It seems such an application has been made to the Special Term and that leave was granted and the motion for an extra allowance was heard and determined by the Special Term adversely to the plaintiff. Additional papers were used upon that motion and are now brought before us by the appeal from the order now under consideration. Upon a careful examination of the papers now found in the appeal book, a severe and resolute conflict is found. Skilled and experienced practitioners are in conflict as to whether the case was difficult and extraordinary. Affirmative affidavits that it was, and-affirmative affidavits that it was not difficult and extraordinary are found in the appeal book. The charge of the trial judge is also found in the appeal book, and the nature and character of the issues are fully discussed, and it is confidently asserted on behalf of the appellant that the case was difficult and extraordinary, and it is resolutely denied on the part of the respondents that the case was both difficult and extraordinary. The trial judge was called upon to determine upon all the conflicting evidence before him, as well as upon his recollections of the trial, as to whether this was a proper case within the rales that are applicable to motions for an extra allowance, or not. He has determined adversely, and in making that determination he has exercised his judgment and discretion. It may be observed that the case was somewhat extraordinary, but some doubt may be entertained as to whether it was difficult. Its determination at the Circuit turned upon the application of simple rules relating to fraud cases, and we may well hesitate to declare that the trial judge has abused his discretion in refusing an allowance, as that refusal may have been put upon the ground that no difficult questions of law were involved in the case. As early as 29 New York, 423, it was decided that such applications were addressed to the sound discretion of the judge who was called upon to carry out the provisions of law upon the subject of allowances. The rule does not seem to have been changed by section 3253 of the Code of Civil Procedure. It was restated in Tolman v. S. B. & N. Y. R. R. Co. (supra).

In Morrison v. Agate (20 Hun, 25) it was said : “ The court does not encourage appeals upon mere matters of discretion, and it will only interfere when the discretion seems to have been abused, or in a plain case of its unwise exercise.” And in Bryon v. Durrie (6 Abb. N. C. 140) it was said that whether an action should be regarded as difficult and extraordinary rests substantially in the judgment and discretion of the judge to whom the application is made, and the determination of the question usually involves so many considerations which are addressed to the discretion of the judge, that the appellate court rarely interferes.” (See, also, Mutual Life Ins. Co. v. Cranwell, 32 N. Y. St. Repr. 376; Hanover Fire Ins. Co. v. Germania Fire Ins. Co., 138 N. Y. 252.) The papers disclosed that the plaintiff made a claim for a larger amount of damages by reason of the detention of the goods than it was found entitled to upon the trial. That circumstance may have had some influence in the determination made by the trial judge in refusing an allowance. (Burke v. Candee, 63 Barb. 552.) Not being fully persuaded that the trial judge abused his discretion in •denying the motion, we are not inclined to reverse the order made by him, after a full consideration of all the facts and circumstances disclosed in the present appeal book, and calling to mind all the circumstances that transpired before him at the time of the trial. The foregoing views lead us to sustain the order made at the Special Term.

Martin and Merwin, JJ., concurred.

Order affirmed, without costs to either party.