author: Brown, P. J.: Dykman, J'.

text:
    Clara Ottendorff, as Administratrix, etc., of Johann Phillip Ottendorff, Deceased, Respondent, v. James Willis, Appellant.

      Pedestrian crossing a street — duty of a driver of a truck — the court may suggest the recalling of a witness.

    If a pedestrian starts to cross a street while a truck is standing still his action in so doing is not careless, and the driver of the truck is hound to avoid him.
    Where the driver of a truck sees a person crossing the street and observes that he is an old man and appears timid, his proper course is to delay starting his team until such person has passed in front of him. It is within the discretion of a trial court, after the plaintiff has rested his case, to suggest and permit the recalling- of a witness and the obtaining of further testimony from him.
    (Dykman, J., distenting.)
    Appeal by the defendant, James Willis, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 9th day of January, 1894, upon the verdict of a jury, -rendered after a trial at the Kings County Circuit, and also from an order entered in said clerk’s office on the 12th day of January, 1891, denying the defendant’s motion for a new trial made upon the minutes.

      Henry L. Seheuermcm, for the appellant.

      Norman A. Lcrnlor, for the respondent.
   Brown, P. J.:

The plaintiff’s intestate while crossing South street, in the city of New York, was run over by a large track owned by the defendant and received injuries from which he died. The accident happened about midday upon the crossing leading from Koosevelt street ferry to the southwest corner of South and Koosevelt streets. The deceased was coming from the ferry and the truck was being driven to the dock of the Clyde line of steamships. The only witnesses who saw the accident and attempted to describe it were the driver of the truck and a man named Leo. The latter was called by the plaintiff, and when she rested her case it did not appear which party was to blame. At the suggestion of the court Leo was thereupon recalled and testified as follows: “ This truck was standing still on Koosevelt street. This old gentleman was walking ahead when it was standing still. lie was about fifteen feet from the truck when it started; while he was walking ahead. When it started Ottendorff was walking right ahead of the truck. He was always in front of the truck. I should judge about eight feet at that time; he was in front of the truck, and the driver whipped up his horses. He was eight feet away from the truck — six feet from the truck. There was three crosswalks there, two straight ones and a slanting one from the ferry, and this old gentleman was talking on the slanting crosswalk towards Koosevelt street; then the truck was standing on the side of Koosevelt when he started ahead and struck the old gent. If the old man had stopped when the truck started ahead he would not have been hit. lie was not in line with the truck; he kept right ahead going ahead of the truck.” “ The driver of the truck brought his truck between OttendorfE and the sidewalk. There was more than fifty feet beyond where he could have gone clear. This truck was driving towards the downtown side on Roosevelt street; going towards the river side.”

The driver contradicted this evidence and gave testimony which, if believed, entirely exonerated him from fault and placed the blame upon the deceased.

I think the case was for the jury.

If the deceased started to cross the street while the truck was standing still his action in so doing was not careless, and the driver oE the truck was bound to avoid him.

The driver testified that lie saw the deceased and observed that he was an old man and appeared timid, and his proper'course was to have delayed starting his team until the deceased had passed in front of him. The evidence, I think, permitted the conclusion that the driver was negligent and that the deceased exercised due care. ' It was within the discretion of the trial court to permit the witness Leo to be recalled, and the exception to that ruling presents no question upon this appeal. Whether Leo’s testimony was worthy of belief was a question for the jury and not for the court.

The judgment and order should be affirmed, with costs.

CunnifiN, J., concurred.

Dykman, J'.

(dissenting):

This is an action under the statute to recover damages resulting from the death of Johann Phillip Ottendorif.

The plaintiff, who is the administratrix of the deceased, recovered a verdict for $1,500, and the defendant has appealed from the judgment entered thereon and from the order denying a motion for a new trial upon the minutes of the court.

The accident occurred on the 18th day of January, 1890, upon the crosswalk leading from the Roosevelt street ferry diagonally across South street.

The deceased was coming from the ferry. At that" time a heavily-laden truck drawn by two horses belonging to the defendant, and driven by a person in bis employ, was waiting to go to the Clyde dock, and to reach there it was necessary to cross the diagonal sidewalk.

But one person who witnessed the accident was called by the plaintiff, and his testimony was quite unsatisfactory. In one portion of his evidence he said he saw the wagon and the man approach each other, and saw the accident, but did not know how iu was.

When the plaintiff rested the defendant made amotion to dismiss the complaint, and the trial judge intimated that the case was very meagre with respect to the party who was in fault.

Thereupon a witness was recalled, who said the truck was standing still, and started after the deceased was in front of it.

Then the motion for a nonsuit was denied, and the defendant called the driver of the truck as a wdtness, and he said he shouted to the deceased, who stopped, and then he, the driver, got under way, and thereupon the deceased attempted to run around ahead of the team; that he got nearly past the team when the cross bar struck him.

That testimony harmonized with the evidence of the plaintiff’s witness, and with all the other proof introduced by the defendant.

In view of the rule of law that negligence on the part of the defendant and freedom therefrom on the part of the injured person are affirmative facts to be established by the plaintiff by a preponderance of proof, we think the plaintiff failed to sustain the burden thus cast upon her. .

All the witnesses were disinterested, except as it may be said the driver was interested to show himself free from fault. Yet lie was fully corroborated by the officer. In one material respect he was corroborated substantially by the chief witness of the plaintiff, who said the deceased kept walking straight ahead, and if he had stopped when the truck started ahead he would not have been hurt.

The driver said on that point that he just got started to go ahead as the deceased stopped, and then he put the whip on the horses, and the deceased attempted to run around the team.

In a case quite similar to this it was said by the Court of Appeals that “ It is negligence per se for a foot traveler to attempt to cross a public thoroughfare ahead of vehicles of any kind under such circumstances, upon nice calculations of the chances of injury. If such attempt be made, and the calculations fail to the plaintiff’s harm, he. can have no redress for injuries received in his mistaken effort.” (Belton v. Baxter, 54 N. Y. 245.)

To the same effect is the case of Wendell v. N. Y. C. H. R. R. R. Co. (91 N. Y. 420).

The police officer saw more of the occurrence than the principal witness for the plaintiff, and, as he corroborates the testimony of the driver, the great preponderance of the evidence is in favor of the defendant. It shows the driver free from fault, and convicts the deceased of contributory negligence.

The condition and situation in which he was placed demanded from him a vigilant use of his eyes and a careful exertion of prudence, and it is plainly evident that the exercise of ordinary care and caution would have saved him from injury.

Instead of stopping and remaining in a place of safety, as he could easily have done, he moved forward into a situation of great danger which was plainly apparent.

The day was bright and there was nothing to obstruct the view or obscure the danger.

The proof, therefore, fails to establish negligence on the part of the driver, or freedom from negligence on the part of the deceased.

The judgment and order denying the motion for a new trial should be reversed and a new trial granted, with costs to abide the event.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: BijowN, P. J.:

license: Public Domain

text:
    Robert Went, Respondent, v. The Methodist Protestant Church of Williamsburgh, Kings County, and Another, Appellants.

      Cemetery —power of the Legislature to prohibit interments — removal of the dead •— act authorizing the sale of cemetery lands — title to a cemet&ry lot • — no right of a, pew owner to compensation on the taking down of the church — chapter 852 of 1893.
    The Legislature has power to prohibit interments in, or to remove the dead from, cemeteries which, in view of the advance of urban population, may be detrimental to the public health or are in danger of becoming so.

      The validity of an act authorizing a sale of cemetery lands, -when challenged by an individual lot owner, depends upon the character of the title which the latter has to his burial plot.
    The Legislature, in directing the removal of the dead, must provide for the expenses of such removal, and while it may impose that expense upon the lots from which bodies are removed, or upon the owners of the lots, it must proceed by lawful methods.
    If the lot owner has title to the land, he cannot be deprived of his property without his consent, and a direction by the Legislature to the corporation or association having general charge of the cemetery to sell and convey it, would have no valid force or effect.
    The question as to the title of a lot owner in a cemetery to his lot therein cannot be determined solely by the terms of the deed thereof; reference must be had to the act of the Legislature creating the corporation, from which the title is-derived, and to the limitations upon its power, and to the manifest intent of the-parties to the instrument.
    ■Every owner bf a cemetery lot must be deemed to have purchased and to hold it for the sole purpose of using it as a place of burial, and he is bound to know at his peril that it may become offensive by reason of the residence of many people in its vicinity, and that such use must yield to laws for the suppression of nuisances.
    Every lot owner holds his title subject to that contingency, and no condition or covenants contained in deeds appropriating the lands to particular uses can prevent the Legislature from declaring such use unlawful and compelling the removal of all bodies from the ground.
    Chapter 352 of the Laws of 1893 is a valid exercise of legislative power, and the action of The Methodist Protestant Church of Williamsburgli, Kings county, and the Union Cemetery thereunder cannot be restrained.

      Semble, that a pew owner has no claim for compensation when the church is taken down from necessity, arising from the condition of the building or other imperative exigency; and it cannot be said that in such a case his property is taken for a public use.
    ■ Appeal by the defendants, The Methodist Protestant Church of Williamsburgli, Kings county, 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 Kings on the 13th day of February, 1891, upon the decision of the court rendered after a trial at the Kings County Special Term, restraining the defendants from selling Union Cemetery, or in any manner interfering with or using said cemetery except for cemetery purposes.
    In the year 1851 the Methodist Protestant Church of Williams-burgh and the Methodist Protestant Church of New York purchased from Margaret Duryea a plot of ground now in the city of Brooklyn and comprising about three city blocks, to be used as a burial .ground.
    By chapter 196,-Laws of 1853, a corporation to be known as “ Union Cemetery ” was created, and the trustees of said two church corporations were made a joint board of trustees of said cemetery corporation. It was enacted that the aforesaid lands should be deemed .and taken as a rural cemetery within the meaning of the ■act for the incorporation of rural cemetery associations, passed April 27, 1847, and should possess all the rights, immunities, privileges and franchises set forth and granted by the terms of said last-mentioned act, with certain exceptions not material to this case.
    By chapter 308, Laws of 1878, supplemental to the act of 1853, it was further provided that said land should “ be and continue a rural cemetery forever, subject to all laws relating to'rural cemeteries as modified and limited by the act to which this is an addition.”
    Provision was therein made by which either of said two church •corporations might release to the other its interest in said lands, and upon the execution of such release the trustees of the corporation to whom the same was executed were to become vested with the entire property and franchises of Union Cemetery and subject to the duties and obligations charged on the joint board. Pursuant to this act the Methodist Protestant Church of New York released all its interest in said lands to the WiHiarnsburgh church. The lands were subdivided into burial lots and sold to many persons, and the deeds given for such lots were in form full covenant warranty deeds, purporting to convey title to the land. Many thousand bodies have been interred in the cemetery. There are no further lots for sale and no place for reinterments if any bodies are removed.
    The part of the city in which said cemetery is situated is rapidly increasing in population; streets and avenues have been laid out through the said lands, and proceedings for the opening of the same instituted by the common council of the city. By chapter 352, Laws of 1893, the Legislature prohibited further interments therein, and authorized the appellant church to remove or cause to be removed all bodies buried and now remaining in said cemetery, with all monuments, headstones, etc., to some other cemetery to be procured by purchase, and to sell Union Cemetery at public or private ■sale, and apply so much of the proceeds as' might be necessary to tlie purchase of the new cemetery and the expenses of the removal of the bodies.
    The plaintiff is the owner of a lot in said cemetery in which interments have been made, and brings this action to restrain the defendants from selling said land or using the same for any except cemetery purposes.
    The court found that the cemetery had never been adjudged to-be a nuisance, but that its location and condition and present surroundings rendered its removal advisable, and that the act of 1893, so far as it authorized a sale thereof without providing for compensation to the plaintiff and other lot owners, was in violation of the Constitution of the State.
    Further material facts appear in the opinion.

      William Erdmcm and Job E. Hedges for the appellants.

      \Y. S. Lewis and II. F. Icmrenee, for the respondent.
   BijowN, P. J.:

The power of the Legislature, to prohibit interments in or to-remove the dead from cemeteries which in the advance of urban population may be detrimental to the public health or in danger of becoming so, is not at this day a debatable question. (Windt v. German Ref. Church, 4 Sandf. Ch. 471; Richards v. The N. W. Prot. Dutch Church, 32 Barb. 42; Brick Church v. The Mayor, 5 Cow. 538; Coates v. The Mayor, 1 id. 585; Sohier v. Trinity Church, 109 Mass. 1; Woodlawn Cemetery v. Everett, 118 id. 354; Kincaid’s Appeal, 66 Penn. St. 411; Craig v. First Presb. Church, 88 id. 42; Tiedeman on Police Power, § 122d; Dillon on Mun. Corp. §§ 306, 301.)

In .Kincaid’s Appeal the Supreme Court of Pennsylvania said that no one can doubt the power of the Legislature to prohibit all further interments within the limits of towns and cities, and as the constitutionality of that exercise of legislative power was unquestioned, it was not doubted that the Legislature could proceed a step further and declare thpt burying grounds should be vacated as such and direct the removal of the bodies therefrom. The plaintiff does not seriously question the existence of this legislative power, but it is apparent that in this* instance, unless the defendants can sell the cemetery lands, tlie direction for the removal and reinterment of the bodies cannot be carried out. The validity of an act authorizing a sale of cemetery lands, when challenged by the individual lot owner, depends upon the character of the title which the latter has to his burial plot. "While it is apparent that the Legislature, in directing the removal' of the dead, must provide for the expenses, and while I have no doubt that it may impose that expense upon the lots from which bodies are removed, or upon the owner thereof, it must proceed by lawful methods, and if the lot owner has a title to the land ho cannot be deprived of his property without his consent, and a direction by the Legislature to the corporation or association having general charge of the cemetery to sell and convey it would have no valid force or effect.

The constitutional provision in relation to making compensation for property taken for a public use does not seem to me to have any application to the question. The abatement of the nuisance arising from the burial of great numbers of dead bodies in a thickly populated district is the question which concerns the public and the one over which the Legislature has power, and that is satisfied by a removal.of the bodies. No property is taken for public use, unless it can be said to be taken for the purpose of acquiring new burying grounds and to pay the expense of removal. But to take it for that purpose would be in the nature of a tax or assessment, to impose or enforce which the Legislature should provide regular proceedings, in which the lot owners should have opportunely to be heard. The Legislature, in directing a sale of the land question, has assumed that the church corporation had the title. If that is not the fact, then the power of sale cannot be executed. The reported cases are not harmonious upon the question as to the character of the title which a lot owner has to a burial plot in a cemetery controlled and governed by a corporation.

■ The courts have differed as to whether it is an easement analogous to that of a pew owner in a church, or whether it is an ownership in the soil.

Mr. Washburn, in his work on Easements (p. 515), states the rule as follows: “Right of burial in churchyards and pew rights in churches, although acquired by deed of a particular lot or pew, are only easements in land belonging to the society which governs the cburcli or churchyard. It is an easement in, and not a title to, the freehold, and is to be understood as granted and taken, subject, with compensation, of course, to such changes as the altered circumstances of the congregation or the neighborhood may render necessary.”

To the same effect are: Kincaid’s Appeal (66 Penn. St. 411-123); Craig v. First Presb. Ch. (88 id. 42); Sohier v. Trinity Church (109 Mass. 1-21); Price v. Meth. Church (4 Ohio, 515); Richards v. N. W. Dutch Ch. (32 Barb. 42); Buffalo City Cem. v. City of Buffalo (46 N. Y. 503).

To the contrary are: In re Brick Presb. Ch. (3 Edw. Ch. 155); Windt v. German Rfd. Ch. (4 Sandf. Ch. 471).

In the case of the Brick Church the deed to the lot owner was in form similar to that held by the plaintiff. The vice-chancellor, after a review' of many authorities and distinguishing the case from that of a pew holder or owner of a tomb, held that the deed gave to the lot owner title to the land and not a mere easement or privilege of burial.

In the case of the German Rfd. Ch. the plaintiff had no deed, and an injunction to restrain the sale of the land -was refused, but Yice-Cliancellor SaNDKOeb expressed the opinion that the result would have been otherwise if the plaintiff had held a deed for his plot.

These cases cannot, I think, be reconciled with the case of the N. W. Prot. Dutch Church (32 Barb. 42). There the plaintiff held title to his lot by deed — which granted to him, “his heirs and .assigns forever,” and stipulated that the vault should “ never be dug up, disturbed or destroyed.” An injunction restraining a sale by the church was denied.

In Kincaid’s case the evidence of title vras a certificate under seal of the clmrch that the lot owner was entitled to two lots of a certain size and number to hold for the uses and purposes mentioned in the deed of trust to the church.

In the case of Trinity Church of Boston the tombs were constracted under the church edifice, but the plaintiffs held title by deed.

The question of title cannot be determined solely by the terms of the deed given to the lot owner. Reference must of course be had to the act of the Legislature creating the corporation from which title is derived and to the limitations upon its power and to the manifest intent of the parties to the instrument. Every owner of a cemetery lot must be deemed to have purchased and to hold it for the sole purpose of using it as a place of burial, and, as was said in Kincaid's case, lie is bound to know at his peril that it may become offensive by the residence of many people in res vicinity and that its use must yield to laws for the suppression of nuisances. Every cemetery within or near lai'ge cities must give way to the advance of population. Interments ultimately must cease and the remains of the dead that are capable of removal must be reintered in new grounds. Every lot owner holds his title subject to that contingency, and no condition or covenants contained in deeds appropriating the lands to particular uses can prevent the Legislature from declaring such use unlawful and compelling the removal of all b .dies from the grounds.

All individual rights of property, whether they rest on absolute conveyances or mere license, are subject to laws of this character, and the principle known as the police power, upon which the legislative authority to enact such laws rests, has of late years been considered by the courts in numerous cases — many of which are on the briefs of counsel.

Assuming, therefore, as we must, that the use of the cemetery as a burial place may be interdicted, and the bodies of the dead removed, it cannot, I think, be seriously claimed that it was within the contemplation of parties to a deed for a burial plot, that when that contingency should arise the individual owner should hold, title to his lot for general uses the same as he would hold other property. Individual ownership under such circumstances, would only create confusion of title and' eventually leave a large tract of land without the care or supervision of a responsible owner. The lots would be small and of no use for building purposes, inaccessible in many instances from the city streets, and where the original grantee had died, probably owned by many persons having widely separated residences and in many instances unknown.

A construction should not, therefore, be put upon deeds of this character that would produce such a result, unless the rules of law applicable to such instruments forbid any other conclusion. By the Laws of 1853 and 1878, relating to the incorporation of Union Cemetery, it was enacted that it should be a rural cemetery within. the meaning of the act for the incorporation of rural cemetery associations, anti it was made subject to the restrictions and given the rights and franchises of such associations. An examination of the act of 1847, authorizing the incorporation of such associations, and the amendments thereto, shows that it was the intention of the Legislature that the title to the laird should remain in the association and that the lot owner should hold only an easement for the purpose of burial. The power reserved to the association by sections 8, 9 and 10 are powers that belong to the owner of the fee.

It may sue for trespass committed on the lots conveyed to individuals, and it may enter upon the lots at any time to improve or embellish them or to erect buildings, fences, walks, etc. The lots are exempt from taxation as property of the association. The provisions of section 11, to which our attention is called, that a lot in which an interment has been made is forever thereafter inalienable, is not a limitation upon the power of the Legislature to order a sale of the property.

The case of The Deansville Cemetery Association (66 N. Y. 569), cited in the opinion of the Special Term and relied upon by the respondent, does not decide anything contrary to the views here expressed. That was an application to condemn lands for cemetery purposes, and the court decided that the act of the Legislature purporting to grant that power was unconstitutional on the ground that the use for which the land was to be taken was private and not public. Nothing in the opinion can be construed as holding that the individual owner held title to the soil of his burial lot. It was said that their rights ” descended to their heirs as private property and that the substantial right of enjoyment of the property was vested in individual lot owners. But this language is as applicable to an easement as to an ownership of the soil.

The question of title was, however, presented in the case of The Buffalo Cemetery v. City of Buffalo (46 N. Y. 503).

In that case the association, which was organized under the Rural Cemetery Act, sought to have an assessment set aside on the ground, that it should have been made against the individual lot owner. This claim was overruled and the assessment sustained, Judge Folg-jer saying that the effect of such conveyance under the statute * * * (was) to confer upon the holder of a lot a right to use for the purpose of interment.” “No such estate is,” he said, “granted as makes him an owner in such sense as to exclude the general proprietorship of the association. The association remains the owner in general, and holds that relation to the public and to the government ; while subject to this the individual has a right, exclusive of any other person, to bury upon the subdivided plat assigned to him. He holds a position analogous to that of a pew holder in a house for public worship.”

This case, in my judgment, is conclusive as to the plaintiff’s title. It is true that there was no conveyance before the court in that case, and that the plaintiff’s deed is sufficient to convey a freehold; but, construing the latter conveyance in the light of the statute authorizing the creation of rural cemetery associations, as interpreted by the ■ Court of Appeals, and the evident purpose of the parties to the contract, it cannot, I think, bo truly claimed that the plaintiff purchased more than an easement for burial purposes, or that the grant was intended to convey a fee. The intent of the contract is carried out and the purpose of the parties thereto effectuated by holding that the legal effect of the instrument was to grant an easement in the land only.

To this construction of the plaintiff’s deed the case of The Brick Church (3 Edw. Ch. 155) does not apply. It is settled by a lóng line of authorities that a pew owner has no claim for compensation when the church is taken down from necessity arising from the condition of the building or other imperative exigency.

It cannot be said, in any sense, that in such case his property is taken for public use. (Kincaid's Appeal, supra, and cases cited in opinion of Judge Siiarswood.)

In this case the plaintiff’s rights are fully protected by the direction to the defendants to remove the bodies to a new cemetery, and to purchase other land to be used for cemetery purposes. The rights of burial which he loses in the old ground will be fully restored to him in the new, and in legal contemplation he suffers no damages.

My conclusion is that the act of 1893 was a valid exercise of legislative power, and the action of defendants thereunder cannot be restrained.

The judgment must, therefore, be reversed, and, as a new trial would be of no avail to tbe plaintiff, the complaint is dismissed, with costs.

DyjcMAN and CullbN, JJ., concurred.

Judgment reversed and complaint dismissed, with costs.


author: BeowN, P. J.:

text:
    John Lang, Jr., an Infant, by Emil A. Meury, his Guardian, Appellant, v. The New York, Lake Erie and Western Railroad Company, Respondent.

      A 'muster’s liability for the acts of his servants — implied authority of a brakeman to remove trespassers from a freight train — action to recover damages foi' personal injuries — when the complaint therein is impi'operly dismissed.

    Tlie test of a master’s liability for the acts of his servants is not whether an. injury is the result of acts committed by the express authority of the master, hut whether the servant had authority to act in respect to the business in which lie was engaged when the injury was committed. The master is liable for all acts done by- the servant, in the execution of his employer’s business, which come within the scope of his employment.
    A brakeman oil a freight train who finds a trespasser on one of the cars has an implied authority,, from the nature of his business, to remove the trespasser. ■
    Upon the trial of an action brought to recover damages resulting from personal injuries, it was shown that the plaintiff, a boy of eleven years of age, while riding upon a coal train of the defendant, fell off and received the injuries complained of. The plaintiff’s testimony was to the effect that one of the brakemen threw coal at him, and as he was about to get off he was hit in the back of the neck by a large lump of coal thrown by the brakeman and knocked from the car. The complaint was dismissed on the ground that the brakeman was not shown to have any express authority from the defendant to remove intruders from the train, and that none could be implied from his position or the nature of his employment.

      Held, that, under the circumstances, the complaint was improperly dismissed and that the case in all its aspects was one to be determined by the jury.
    Appeal by tlie plaintiff, Jolm Lang, Jr., an infant, by Emil A. Meury, liis guardian, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 16th day of January, 1889, upon the dismissal of the complaint directed by the court after a trial at the Kings County Circuit before the court and a jury.

      C. D. Rust, for tlie appellant.

      B&ryj. F. Traey, for tbe respondent.
   BeowN, P. J.:

The plaintiff, a boy of eleven years .of age, while riding upon a coal train of the defendant going from Bergen to Weehawken, fell off and received the injuries complained of. The plaintiff’s testimony, however, was to the effect that one of the brakemen of the train threw coal at him, and as he was about to get off he was hit in the back of the neck by a large lump of coal thrown by the brakeman and knocked from the car.

The complaint was dismissed on the ground that the brakeman-was not shown to have any express authority from the defendant to remove intruders from tlie train, and that none could be implied from his position or the nature of his employment, and the correctness of that ruling is the only question presented for review.

We are of the opinion that the case in all its aspects was for the jury.

The question as to the liability of a master for the acts of his servant is one that has received full and careful consideration in numerous cases in this and other States.

It is not always possible to harmonize the decisions, and it would be impossible in an opinion of ordinary length to attempt a review of the numerous cases to which our attention has been called by the learned counsel who argued this appeal.

The general rule applicable to a master’s liability is quite well settled, but it is difficult to apply it to the different circumstances under which the question arises.

The learned counsel for the respondent has cited the case of Towanda Coal Co. v. Heeman (86 Penn. St. 418), in which the facts are quite similar to those before us, and which fully sustain the ruling of the trial court, but that case is, we think, opposed to the 'current of authority in this State.

The test of the master’s liability is not whether the injury is the result of acts committed by the express authority of the master, but whether the servant had authority to act in respect to the business in which he was engaged when the injury was committed; and for all acts done by the servant in the exemition of his employer’s business, within the scope of bis employment, the master is liable. (Higgins v. Watervliet Turnpike Co., 46 N. Y. 23; Rounds v. D., L. & W. R. R. Co., 64 id. 129.)

In tbe Bounds case the plaintiff was Mcked from the platform of a car, upon which he was stealing a ride, by a baggageman who had authority to remove him from the train; and by this latter fact the case is distinguished from the one at bar.

But in Hoffman v. N. Y. C. & H. R. R. R. Co. (87 N. Y. 25) the plaintiff was kicked from the train by the conductor, or a brakeman, and the case was considered by the Court of Appeals upon the assumption that the injury might have been inflicted by the act of either.

In the course of his opinion Judge ANDREWS said: “ It is conceded that authority in a conductor to remove a trespasser in a lawful manner, whether conferred by the rules or not, is implied, and is incident to his position. We think the same concession must be made in respect to the authority of a brakeman who finds a trespasser on the platform of a car. * * The implied authority in such a case is an inference from the nature of the business, and its actual daily exercise, according to common observation and experience.”

The reasoning of the court upon this question renders its conclusion as applicable to a coal train as a passenger train. The conductor and brakeman are in charge of the train and the property carried by it. Their duty is not only to properly manage the train, but to guard and protect it, and very obviously this duty implies an authority to remove intruders from it.

The same rule was applied in Clark v. N. Y., L. E. & W. R. R. Co. (40 Hun, 605 ; affd., 113 N. Y. 670).

It did not appéar in that case who it was that did the act which was the cause of the injury, except that he was an employee of the defendant. But because the purpose of the act was the removal of the plaintiff from the car, the court held it was within scope of the servant’s employment.

The ease of Palmeri v. The Manhattan Ry. Co. (188 N. Y. 261) is a recent illustration of the application of the rule which makes the master liable for the unlawful acts of its servants. In that case a ticket agent charged the plaintiff with having given him a counterfeit coin, and called him a counterfeiter and other names. He demanded another coin in place of the one given him, and detained him in the station while he endeavored to get an officer to arrest him. Because he was acting for his employer and endeavoring to recover his property the master was held liable for his acts. The brakemau in this case, if the plaintiff’s story was true, was acting for the protection of his master’s property, and his act, in removing the plaintiff, was within his implied power and incident to his position upon the train.

We are of the opinion also that this question was decided in the case brought by the plaintiff’s father. (Lang v. N. Y., L. E. & W. R. R. Co., 51 Hun, 603 ; affd., 123 N. Y 656.)

In Judge Barnard’s opinion he says “ the brakeman was engaged in the master’s business and acting within the scope of the authority.”

An examination of the printed case and the points of counsel show that the point was fairly presented upon the appeal.

It follows that it was erroneous to dismiss the complaint, and the case should have been submitted to the jury.

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

DykaiaN and Cullen, JJ., concurred.

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


author: Brown, P. J. :

text:
    Gilbert E. Van Wagner, Respondent, v. Central New England and Western Railroad Company, Appellant.

      Railroad, corporation — construction of farm crossings, determined by a court of equity — the right of the owner to compel the construction of farm crossings is not affected by a/n moardin condemnation proceedings.

    The duty of constructing farm crossings for the use of the proprietors of land adjoining a railroad is enjoined upon railroad corporations hy statute, and such duty must he performed with due regard to the necessities and conveniences of the landowner; the corporationis not vested with an absolute discretion as to the kind and character of the crossing it will construct, and tire necessity of an under or overgrade crossing is a question of fact which a court of equity may determine, the decision of which is not within the jurisdiction of commissioners of appraisal appointed in condemnation proceedings.
    The fact that the owner of a farm received an award in condemnation proceedings, instituted by the corporation owning- the railroad running through his land, does not preclude him from maintaining an action against such corporation to compel it to construct an undergrade crossing upon his farm, although upon the trial of such action two of the three commissioners who made the award in the condemnation proceedings testify that they awarded damages on the assumption that there was to he no undergrade crossing.
    Appeal by the defendant, Central New England and Western Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Dutchess on the 9th day of December, 1893, upon the decision of the court rendered after a trial at the Dutchess Special Term, with notice of an intention to bring up for review on such appeal all questions of law and fact arising under such judgment.

      Milton E. Fowler, for the appellant.

      Maclcett <& Willimns, for the respondent.
   Brown, P. J. :

This action is in equity to compel the defendant to construct an undergrade crossing upon plaintiff’s farm.

The buildings were all south of' the road, while two-thirds of the farm was north of it. Prior to the construction of the railroad the road used in passing from the buildings to that part of the farm just north of the railroad, was at the point designated in the judgment for the undergrade crossing, and at this point the railroad embankment is about nineteen feet above the.natural grade of the ground.

The appellant constructed four grade crossings and one cattle pass, but the court found that the crossings are of no practical use in the working of the farm, and its conclusion in that respect is fully sustained by the evidence.

The testimony introduced by the plaintiff permitted the conclusion that all were dangerous except that designated as Z, and that one furnished access to a very small part of the farm.

The question of law raised by the appeal and to which our attention is called is that the inconvenience arising from the construction of the railroad without an undergrade crossing, and the consequent damage to the plaintiff had been paid for by the award in the condemnation proceedings. Two of the three commissioners who made the award were called as witnesses by the defendant and testified that they awarded damages on the assumption that there was to be no undercrossing. The other commissioner was not called, nor was it shown what the evidence before the commission was. The appellant contends that the plaintiff is by the award estopped from now asserting his right to an undercrossing. The evidence shows that when the commission met the plaintiff said he wanted an under-crossing, whereupon the attorney for the appellant refused to construct one, and said the company wanted the damages assessed without any reference to such a crossing.

A stipulation -was made with reference to a cattle pass but none with reference to the crossings.

This evidence does not conclude the plaintiff or amount to a waiver of any right he might have to the crossing asked for. He did not consent that the commission should assess his damages on the assumption that there would not be an undercrossing. He stood upon his legal rights, and the fact that the award was made on such a basis does not prevent his asserting that right in this action. (Beardsley v. Lehigh Valley Railway Co., 142 N. Y. 173.)

The duty of constructing farm crossings for the use of proprietors of lands adjoining the railroad is enjoined upon railroad corporations by statute. That duty must be performed with due regard to the necessities and convenience of the landowner. (Jones v. Seligman, 81 N. Y. 190.)

And the corporation is not vested with an absolute discretion as to the kind and character of the crossing it will construct. The necessity of an under or overgrade crossing is a question of fact which a court of equity may determine, and is not within the jurisdiction of the commissioners of appraisal.

The corporation cannot, therefore, cause the damages to be assessed .upon the assumption that it will construct grade crossings only, and thus deprive the landowner without his consent of a crossing which is necessary to the proper working and management of the farm.

In other words, the corporation cannot substitute a money equivalent in place of that which the statute awards to the landowner.

The plaintiff waived none of his rights, and the judgment must be affirmed, with costs.'

Dykman and Cullen, JJ"., concurred.

Judgment affirmed,-with costs.


author: Brown, P. J.:

text:
    Fannie G. Parsons, Appellant, v. Charles W. Parker, Respondent.

      Occupied lands of non-residents — assessment thereof K the owner need not inform the assessors of an error ■ — independence of every assessment — consent that lands be assessed in the name of one not the owner — tax sale mid where the tax has been paid.

    Occupied lands owned by a person who is a non-resident of the town in which they are situated, but a resident of the county, may be assessed to the occupant as lands of non-residents, or to the owner, and when they are not assessed in either manner, but as resident lands to a person who is neither the owner nor the occupant, the assessment is void.
    A non-resident owner of occupied land is under no obligation to inform the assessors that his land is erroneously assessed in the name of a person who is neither the owner nor the occupant of the same.
    Every assessment is independent of every other assessment, and nothing that occurred in relation to the assessment of certain property in previous years can affect the assessment thereof for any subsequent year, and there is no presumption that the assessors of any one year were the assessors in previous years.
    The fact that the husband of the owner of property sent for and paid the tax bills thereon, which were made out in his name, cannot be deemed an assent that the premises should in subsequent years be assessed in the name of the husband as owner instead of in the name of his wife.
    The sale of land for the non-payment of taxes where the taxes have in fact been paid is a void act, and a deed based on such a' sale conveys to the purchaser no interest in the land.
    Appeal by tlie plaintiff, Fannie G. Parsons, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 80th day of December, 1893, upon i^ie decision of the court rendered after a trial at the Westchester Special Term dismissing the plaintiff’s complaint.

      William P. Fiero, for the appellant.

      Wilson Brown, Jr., for the respondent.
   Brown, P. J.:

This action was brought to recover possession of two lots of land in the town of Mamaroneck, Westchester county, described as Nos. 117 and 118 on a map of lands of Thomas R. Hawley.

Hawley and his wife conveyed the lots to Henry Parsons, the plaintiff’s husband, in 1871, and in 1871 they were conveyed to the plaintiff.

The defendant is in possession and claims title under two tax leases made by the supervisor of the town pursuant to a sale of the lots for unpaid taxes under an assessment for the years 1889 and 1890, and the principal question presented is as to the validity of such assessments and the subsequent proceedings resulting in the lease.

The lots were, prior to 1871, a part of the “ McIntyre farm,” but subsequent to that year were assessed separately from said farm as resident land in the name of Henry Parsons, and the only difference in the assessment for the two years in question is that in 1889 they were assessed as one and in 1890 as two parcels. Parsons and wife were subsequent to 1882 residents of the town of Rye in Westchester county, and plaintiff never resided in Mamaroneck. The defendant claimed, and the court found, that at the time of the assessment the lots were occupied by one S. W. Parker, defendant’s father, and, although the appellant contends that such finding is without support in the evidence, it is not material to the question presented.

The assessment made did not conform with any provision of the statute regulating the manner in which property is assessed. (2 R. S. [8th ed.] 1094, §§ 1, 2, 3.)

Occupied lands owned by a person who is a non-resident of the town in which they are situated, but a resident of the county, may be assessed to the occupant as lands of non-residents or to the owner. (Id. § 2.) The lots in question were not assessed in either manner specified, but as resident lands to Henry Parsons, who was neither owner or occupant. The assessment was, therefore, void. (Hilton v. Fonda, 86 N. Y. 339; Stewart v. Crysler, 100 id. 378; Sanders v. Downs, 141 id. 422.)

The defendant does not seriously contend that the assessment was valid, but he claims that the plaintiff assented to the mode of assessment, and is now estopiped from claiming it to be void. This claim is based upon the fact that up to 1889 the plaintiff’s husband, acting as her agent, annually sent for and paid the tax bills, and never informed the assessors that he had conveyed the lots to his wife, but permitted them to believe that he was the owner and to assess them in liis name. Hilton v. Fonda (supra) is.relied on to sustain this contention, but that case has no application to the facts of this action. The plaintiff there sought to recover damages from the assessors-personally for an illegal assessment, and because his agent informed defendants that plaintiff owned the lands, and appeared before them when they met officially, and claimed and gave evidence to the effect that the valuation was too high, but made no claim that the lands-were assessed as lands of a resident, the court held that the plaintiff waived the observance of the statute and assented to the mode of assessment, and could not thereafter maintain an action for personal damages against the assessors, but it was also held that the assessment made was illegal.

In this ease there is no question presented as to the right of the-owner of the land to enforce a personal liability against the assessors. We are concerned only with the question whether the assessment was so made as to create a charge upon the land, and it would seem to be too clear to require argument that there can be no lien upon land as the result of a void assessment. But the evidence does not support the finding that the plaintiff consented to the mode of assessment. Nothing was ever done or said by her or her husband with reference to the assessment in question. The plaintiff was-under no obligation to inform the assessors of her ownership. The duty to inquire as to the names of taxable inhabitants is enjoined upon the assessors by statute, and as each assessment is independent, of every other assessment, nothing that occurred in prior years could have application to the assessments for 1889 and 1890. Indeed, there can be no presumption that the assessors of those years were-the same persons who held the office in prior years. The evidence-upon which the claim of waiver is based is that plaintiff’s husband sent for and paid the tax bills which were made out in his name, but there is no evidence that either he or plaintiff ever saw or examined the assessment roll, or appeared before the assessors in their official capacity, or had any conversation with any of them in reference to-the lots.

The payment of the taxes of one year cannot be deemed to give-assent to an illegal- mode of assessment in subsequent years, and the-evidence does not permit the conclusion that plaintiff misled the assessors into the performance of an illegal act, or that she waived any of her rights. It follows that the defendant acquired no tit-le to the lots by leases based on the assessment for 1889 and .1890.

The defendant, however, claims title under two other tax leases antedating the assessments of 1889 and 1890. One bears date October 27, 1877, and the other October 5, 1883. Neither the assessment nor the tax upon which either of these leases rest was proven, ■and they do not appear in the case, but reliance is put upon the statutory provision that “ such lease shall be presumptive evidence that such tax was legally imposed, and of the regularity of all the proceedings and of the sale.” (Laws 1874, chap. 610, § 6.)

We are of the opinion that enough appears in evidence to overcome the presumption of regularity given by law to the leases and to show that they convey no title to the lots in question. As already stated, the lots were a part of a tract of land of about ninety acres known •as the McIntyre farm, owned by Thomas R. Ilawley prior to 1871. The leases of 1877 and 1883 described by bounds “ all that * "x' * parcel of real estate * * * known as Thomas R. Hawley’s McIntyre farm, 86 acres,” etc., and the statute shows that the proceedings to sell related to taxes for the year immediately preceding the sale.

The presumption to be drawn from the leases, therefore, is that the tax for the non-payment of which the McIntyre farm was sold was legally imposed and was a charge upon lots 117 and 118 and that the proceedings for the sale were regular. But the court found that the lots were conveyed by Thomas R. Hawley to Henry Parsons in 1871, and that in and subsequent to that year they were .assessed sej^arate from the McIntyre farm and that the taxes were paid for every year to 1889, and the case shows in detail the amount of each annual tax and the time and manner of its payment.

It is clear from this evidence that the leases of 1877 and 1883 have no relation to the lots in question, and if tire lots lie within the general description contained in those instruments the presumption of' the regularity of the proceedings for the sale, so far as it apparently applies to them, is entirely overcome by the fact that the tax imposed on them was paid.

The sale of land for taxes where the tax has been paid is plainly ■a void act, and a deed based on such a sale conveys to the purchaser no interest in the land.

The other deeds introduced in evidence by defendant, which purport to convey the McIntyre farm, were all based on a conveyance by Thomas R. Hawley subsequent to 1871, and do not transfer any interest in or title to the lots in question.

The plaintiff clearly established her right to the possession of the-property, and the judgment must be reversed and a new trial granted, with costs to abide the event.

Cullen, J., concurred; Dykman, J., not sitting.

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


text:
    David H. Sprague, Respondent, v. Edward Sprague, as Administrator, etc., of David H. Journeay, Deceased, Appellant, Impleaded, etc.

      Bills and notes — general denial — issue made thereby — a promissory note imports a-consideration — burden of proof.

    Where an answer to a complaint on a promissory note is in effect a general denial it puts in issue all the facts that the plaintiff is bound to prove to make out hiS' cause of action.
    A promissory note, whether it expresses value received or not, imports a consideration, and the burden rests upon the defendant in an action brought thereon to prove that the fact is otherwise; where the answer does not set up-want of consideration as a defense there is no such question in issue ; the fact that the payee of the note was the maker’s mother does not take the case out of the operation of the rule.
    Appeal by the defendant, Edward Sprague, as administrator, etc.,, of David H. Journeay, deceased, from a judgment of the Supreme-Court in favor of the plaintiff, entered in the office of the clerk of the county of Richmond on the 28th day of September, 1893, upon the verdict of a jury rendered after a trial at the Richmond Circuit, and also from an order entered in said clerk’s office on the 20th day of October, 1893, denying the defendant’s motion for a new trial.

      G. D. Yan Name, for the appellant.

      Louis L. Philips, for the respondent.
   Brown, P. J.:

This action is brought upon a promissory note made by the defendant’s intestate. The answer‘denied the making and delivery of the note and any indebtedness thereon. ,

The main question of fact litigated upon the trial was as to the authenticity of the note, and the verdict of the jury has, upon ample testimony, determined that question in the plaintiff’s favor. The question of consideration did not arise upon the pleadings. The ■answer was in effect a general denial, and that put in issue all facts which plaintiff was bound to prove to make out his cause of action. (Milbank v. Jones, 141 N. Y. 340.)

A promissory note, whether it expresses value received or not, imports a consideration, and the burden rests upon the defendant to prove the fact otherwise. (Carnwright v. Gray, 127 N. Y. 92.)

As the answer did not plead that defense the court wras correct in its charge that there was no question of that kind in issue. The fact that tlm payee of the note was the maker’s mother did not take the case out of the operation of the rule cited.

Exception was taken to the admission of certain specimens of the-deceased’s handwriting, and also to the evidence of Edward Sprague that the signature to the note was that of the deceased. This witness testified that he never saw the deceased write, but he narrated occasions when he received receipts and other papers from him under circumstances which left no doubt that they wore written by the deceased.

In our opinion the witness was qualified to express an opinion as to the genuineness of the signature to the note, and the papers were properly admitted in evidence for the purpose of comparison.

The statute (Chap. 555, Laws 1888) makes such writings admissible when “ proved to the satisfaction of the court to be the genuine handwriting'” of the person who it is claimed executed the disputed instrument. And if this witness was to be believed no reasonable doubt existed as to the genuineness of the papers admitted. No ■other question requires notice.

The judgment and order must be affirmed, with costs.

Dykman and Landon, JJ., concurred.

Judgment and order affirmed, with costs.


text:
    Charles Robinson Smith and Another, Respondents, v. Elizabeth Reich, Appellant, Impleaded, etc.

      Title to real estate which is not founded on a written instrument — adverse possession, how established — it must be continuous — privity of possession between successive occupants.

    Where the title of a person to real estate does not rest upon a written instrument it is_ necessary for her, in order to establish title to the same, to show actual continued occupation of the premises under a claim of title exclusive of any other right; under such circumstances land is deemed to be held adversely when it is usually cultivated or improved.
    Adverse possession must be continuous, and when one person seeks to unite to his possession the possession of prior occupants the several titles must be connected by purchase or descent. Without some privity between the successive occupants the several possessions cannot be tacked together so as to make continuity of possession.
    A pbeal by the defendant, Elizabeth Reich, from a judgment of ejectment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Suffolk on the 8th day of November, 1893, upon the verdict of a jury rendered after a trial at the Suffolk Circuit, adjudging that the plaintiffs had an estate in fee simple absolute in certain premises described in the complaint, and also from an order made at the Suffolk Circuit on the 23d day of October, 1893, and entered in said clerk’s office, denying her motion for a new trial made upon the minutes.

      B. N. Payne, for the appellant.

      Newell Marten, for the respondents.
   Brown, P. J.:

This action was in ejectment for a small tract of land in the town of Islip, Suffolk county.

The answer admitted possession, denied the plaintiffs’ title, and alleged that appellant and her grantors had been in uninterrupted adverse possession for more than twenty years prior to the commencement of the action.

In January, 1875, appellant purchased about 10Ó acres of land from Mary H. Cordts, and at that date took possession of the lands in dispute. The plaintiffs were the owners of several hundred acres lying east of tire appellant’s land, and it was their claim that the disputed land was a part of their tract. It was conceded that the westerly boundary of the plaintiffs’ lands and the easterly boundary of the lands described in the deed from Cordts to appellant was the east line of the “ Mowbray patent,” and the location of that line was the main question of fact litigated upon the trial. Under a charge to which, in this respect, no exception was taken, the jury determined the line of the Mowbray patent to be as claimed by the plaintiffs, and, consequently, that the land in dispute was not included in the conveyance to the appellant. The question presented upon this appeal is, whether evidence offered by appellant, and which she claims tended to establish possession adverse to the plaintiffs, was improperly excluded.

Lorenzo Reich, the appellant’s husband, testified that in company with his wife he visited the property in 1871; that he also saw it in 1874, and he was asked whether at those visits the premises were cultivated, and if so, by whom. These questions were objected to and excluded, to which appellant excepted. Similar questions were asked of the appellant and of "William Roland, and excluded over the appellant’s objection and exception. Boland testified that he saw the premises in 1867 and nearly every summer thereafter.

The api^ellant’s title did not rest upon a written instrument, and hence it was necessary for her to show actual continued occupation of the premises under a claim of title, exclusive of any other light. (Pope v. Hanmer, 74 N. Y. 240; Code Civ. Proc. § 371.)

Under such circumstances land is deemed to be held adversely when it is usually cultivated or improved. (Id. § 372.)

While it was a fact material to the appellant’s case to show that for the period of four or five years prior to her occupation the lot was cultivated, that evidence of itself was insufficient to establish an adverse holding.

It was essential that it should appear that such cultivation existed under a claim of title by the occupant, and that appellant had succeeded to that title.

It did not appear that any person in appellant’s chain of title ever had occupied the land, and no offer to show that fact was made. Nor did it ap|3ear that appellant had any other claim to the lot than under her deed from Cordts.

Assuming, therefore, that Lorenzo Reich had answered the question aslced him by- saying that the premises were cultivated in 18Y4 by Mary Oordts, or that it had appeared that her grantors had occupied them, it would not afford sufficient ground to reverse the judgment. Mary Oordts was not called to prove the character of her possession, and under her deed there was no privity between her and defendant with respect to the lot in question. •

Adverse possession must be continuous (Code Oiv. Proc. § 3Y1), and when one person seeks to unite to his possession the possession of prior occupants the several titles must be connected by purchase or descent. Without some privity between the successive occupants the .several possessions cannot be tacked together so as to make continuity of possession. (Doe v. Campbell, 10 Johns. 475; Simpson v. Downing, 23 Wend. 316; Meloin v. Proprietors of Locks, 5 Met. 15; 1 Am. & Eng. Ency. of Law, 269; Angell on Lim. § 413.)

If Mary Oordts had been shown to have occupied the land in dispute Mrs. Reich could not avail herself of that occupation to make up the twenty years necessary to establish an adverse possession, for the reason that the description in her deed excluded the land, and, consequently, she had not acquired Mrs. Oordts’ title.

A different case would have been presented had the description in that deed included the land in question.

The defendant relies upon Barnes v. Light (116 N. Y. 34).

There was no question in that case of continuity of possession. Isaac Barnes, the plaintiff’s predecessor in title, received his deed in 1823, and occupied the land for upwards of twenty years, and the plaintiff had succeeded to his title. That case does not conflict with the rule here applied.

We are of the opinion that no error was committed in the exclusion of the evidence referred to, and the judgment must be affirmed, with costs.

Dykman and Cullen, JJ., concurred.

Judgment affirmed, with costs.


text:
    Frank Gorham and Another, Respondents, v. The Eastchester Electric Company, Appellant.

      Trees — destroyed by the cutting of limbs by an electric company — what description conveys title to the center of a street — inference in resided to such title.

    The privilege of erecting poles and stringing wires along tire streets of a city, granted to an electric company by tlie municipal authorities thereof, confers no authority upon the corporation tó interfere with or destroy private property; and where the title of the owner of a house and lot fronting on a street extends to the middle of the street such person can recover damages against an electric company caused by the unnecessary cutting by it of limbs from the shade trees which stand on such street immedintety in front of the premises owned and occupied by him, and the measure of damages is the diminution in market value of the plaintiff’s premises caused by the cutting of such trees,
    A description which designates a city lot by a lot number and bounds the same “ easterly in front by Fifth avenue, southerly on the other side by Yalentine street,” conveys title to the center of Yalentine street, but the rule is different when the description bounds the land on the side of the street.
    Where upon the trial of an action there is no evidence to show that the grantor of one of the parties did not own to the center of the street on which the premises conveyed fronted, and it appears that at the time of such conveyance the city within which such premises were located was not incorporated, the inference is that the fee of the highway was in the proprietors of the adjoining- lands.
    Appeal by the defendant, The Eastchester Electric Company, from a judgment of the County Court of Westchester county, entered in the office of the clerk of the county of Westchester on the 29th day of March, 1894, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 24th day of March, 1894, denying the defendant’s motion for a new trial made upon the minutes, with notice of an intention to bring up for review on such appeal said order.

      Milo J. White, for the appellant.

      George O. Appell and Odell D. Tompkins, for the respondents.
   Brown, P. J.:

The plaintiffs recovered a verdict against the appellant for damages caused by cutting the limbs from a shade tree which stood on Yalentine street in the city of Mount Yernon immediately in front of premises which plaintiffs owned and occupied.

The privilege of erecting poles and stringing wires along all the streets of the city had been granted to appellant by the municipal authorities, but this grant conferred' upon it no authority to interfere with or destroy private property, and the main question presented for review is whether the plaintiffs’ title extended to the middle of Yalentine street.

The plaintiffs acquired title in 1883, prior to the incorporation of the city of Mount Yernon, under a deed which described the land as being in the town of Eastchester and known as lot number 400 on a map entitled Map of Central Mount-Yernon, etc., filed in the office of the register of the county of Westchester, * * * bounded easterly in front by Fifth avenue * * * southerly on the other side by Yalentine street.”

This description, we think, conveyed title to the center of Yalentine street. (Bissell v. N. Y. C. R. R. Co., 23 N. Y. 61; Wager v. Troy Union R. R. Co., 25 id. 526; Hennessy v. Murdock, 137 id. 317.)

The rule is different when the description bounds the land on the side of the street, and such are the cases cited by the appellant. (Kings Co. Ins. Co. v. Stevens, 87 N. Y. 287; Blackman v. Riley, 138 id. 318; Holloway v. Southmayd, 139 id. 390.)

' There is no evidence to show that plaintiffs’ grantors did not own to the center of the street, and as at the date of the deed the city of Mount Yernon was not incorporated the inference must be that the fee of the highway was in the proprietors of the adjoining lands. (Wager v. Troy R. R. Co., supra.)

The city was incorporated in 1892, but we are not referred to any proceedings under its charter by which the plaintiffs’ ownership in the street had been extinguished.

Under these facts the plaintiffs’ right to maintain the action was established. The court charged the jury that the defendant, under its grant from the city, had the right to trim away the limbs of the tree so as to free its wires from contact with them, but were bound in exercising that right to proceed with ordinary care, and submitted to the jury the question whether there was an unnecessary cutting away of the limbs of the tree. This was certainly as favorable a view of the case as defendant had a right to claim, and the evidence fully sustained the verdict of the jury upon that question.

Evidence was admitted over the defendant’s objection and exception to the effect that the destruction of the tree had diminished the market value of the plaintiffs’ premises.

This was the correct rule applicable to the case, and the exception to the ruling of the court must be overruled. (Dwight v. E., C. & N. R. R. Co., 132 N. Y. 199.)

The judgment and order should be affirmed, with costs.

Dykman and Cullen, JJ., concurred.

Judgment and order affirmed, with costs.


author: Dykman, J.:

text:
    Moses Hawkins, Respondent, v. John G. Beakes and Another, Substituted as Defendants in the Place of Joseph K. Alexander, as Sheriff of Orange County, Appellants.

      Title to crops, subject to an option — right of a judgment creditor of the party haring the option.

    Ill January, 1893, all the personal property of one McCarthy, the lessor of alarm owned by one Hawkins, was taken possession of by Hawkins under chattel mortgages, and shortly afterward McCarthy transferred his equity in the property to Hawkins. Hour days later, by an agreement in writing, Hawkins agreed to give McCarthy an option to repurchase the property in two years, under which arrangement all the hay cut and the erops raised upon the farm were to be and remain the property of Hawkins.
    Prior to January, 1898, one Beakes had recovered a judgment against McCarthy, and upon an execution issued thereon against McCarthy’s property the sheriff levied upon and sold the hay cut upon the farm in the summer of 1893.

      Meld, that the title to the hay was in Hawkins when the agreement between him and McCarthy was executed and was reserved to him by the terms of the agreement, and that his title to the hay could only be divested by the payment of the amount stipulated to be paid by the instrument.
    Appeal by the defendants, John Gr. Beakes and another, substituted as defendants in the place of Josepli K. Alexander, as sheriff of Orange county, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 29th day of January, 1894, upon the decision of the court, rendered after a trial at the Orange Circuit before the court without a jury, adjudging the plaintiff to be the owner and entitled to the possession of certain personal property.

      J. L. Wiggins, for the appellants.

      Jiaeon c% Merritt, for the respondent.
   Dykman, J.:

This is an action for the recovery of sixty tons of hay. The cause was tried before a judge without a jury, and adjudgment was rendered in favor of the-plaintiff against the defendants.

The plaintiff was the owner of a farm which for several years lia-d been in the possession of John McCarthy under a lease from the owner.

In January, 1893, the plaintiff took possession of all the'personal property on the farm belonging to McCarthy under chattel mortgages and claims which he held against him for $3,629. On the 17th day of January, 1893, McCarthy sold and transferred his equity in all the property to the plaintiff.

Subsequently, on the 21st day of January, 1893, by an agreement in writing, the plaintiff agreed to give McCarthy an option to repurchase the said property in two years. All the hay cut and the crops raised upon the said farm were by the said agreement to be and remain the property of the plaintiff. The hay for the recovery of which this action was brought was raised upon the farm in the summer of 1893.

In November, 1892, John G. Beakes recovered a judgment against McCarthy, and upon an .execution issued thereon against the property of McCarthy the sheriff levied upon the hay in question. The hay was taken into the possession of the sheriff and advertised for sale under the execution, and thereupon this action was commenced, the hay was replevined and delivered to the plaintiff.

It is the theory of the defendants upon which the defense to the action is based, that the agreement of January 21, 1893, is a chattel mortgage upon the growing crops, and, therefore, invalid and ineffectual as to third parties, because it was not filed as a chattel mortgage.

That position, however, is faulty, because the title to the property was already in the plaintiff when that agreement was executed, and was reserved to the plaintiff by the terms of the instrument. Such title could only be divested by the payment of the amount stipulated to be paid by the instrument.

The instrument amounted to a stipulation that the products of the soil of the plaintiff’s own land, when they came into existence, should be and remain his property, until the fulfillment of the agreement by McCarthy, and that he never completely performed. There was money due from him to the plaintiff when this action was commenced.

The following cases are authorities in favor of the plaintiff and fully justify the judgment in his favor: Andrew v. Newcomb (32 N. Y. 417); Van Hoozer v. Cory (34 Barb. 9); Schroeppel v. Dingman (17 Wkly. Dig. 257); Booher v. Stewart (75 Hun, 215).

The judgment should be affirmed, with costs.

Cullen, J., concurred; Brown, P. J., not sitting.

Judgment affirmed, with costs.


text:
    Milton T. Woolley, Respondent, v. Sarah L. Loew, Appellant.

      Heal-estate broker — when entitled to eoimnissions — subsequent renewal by the owner of negotiations begun by the broker.

    The owner of real estate may, if the negotiations between his broker and a proposed purchaser thereof are fairly terminated, resume negotiations with the customer, and not be liable to the broker for commissions on the sale thereof to such person; but if the owner of a piece of property puts it in the hands of a broker and the broker commences the negotiations for the sale thereof, the owner cannot, in bad faith to his broker, discharge the broker and conclude such negotiations himself, and then claim that he is not liable to the broker for commissions.
    Appeal by tbe defendant, Sarah. L. Loew, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 22d day of November, 1893, upon the verdict of a jury rendered after a trial at the Kings County Circuit, and also from an order entered in said clerk’s office on the 20th day of November, 1893, denying the defendant’s motion for a new trial made upon the minutes.

      Henry G. Atwater and A. B. Oruileshcmk, for the appellant.

      W. T. Bwdsall, for the respondent.
   Dykman, J.:

This is an action brought by a real estate broker for the recovery of his commissions for the exchange of real property. It? is alleged in the complaint and admitted by the answer that the plaintiff was employed as broker by the defendant to sell or exchange her real property in Rockland county.

The complaint alleges further that the plaintiff produced Edward Cunningham to the plaintiff, that he was willing to exchange property with the defendant for her Rockland county property, that the defendant accepted one of the offers of the customer so produced by the plaintiff, and made a contract with him for the exchange of their property, which was consummated.

The answer admits that the defendant exchanged her property with Cunningham, but denies that such exchange was procured by the plaintiff.

It appeared upon the trial that, after much negotiation between the plaintiff and Cunningham, the defendant made the final contract with Cunningham, and that the plaintiff was not consulted respecting its consummation.

It was the claim of the plaintiff upon the trial that after he had started the negotiation with Cunningham the defendant took up the negotiations and completed the exchange of the property herself for the purpose of avoiding the payment of commissions to the plaintiff; that her conduct in that respect was in bad faith and designed to defraud the plaintiff.

That position raised the important and decisive question in the case, and upon that point the trial judge charged the jury as follows : “ The owner may, if the negotiation is fairly terminated, resume negotiations with the customer and not be liable to the broker, but at the same time, if the owner of a jfiece of property puts it in the hands of a broker, and the broker starts the negotiation, the owner cannot end it in bad faith, and cannot cast the broker aside and carry on the negotiation to completion on his own account, and then claim that he is not liable to the broker for commission.

“ So the question in this case, which is for you to determine, is just this: Was this plaintiff either the efficient cause or agent in producing this- contract of sale between the defendant and Cunningham, and did this defendant dishonestly cast the plaintiff out of the negotiation and go on and complete the transaction himself or through another broker ? If you find in favor of the plaintiff on that question he is entitled to his commission. But if lie was not the efficient cause, and if the negotiation was not dishonestly terminated and the plaintiff turned out, then he is not entitled to his commission.”

The charge thus presented the question fully and fairly, and the jury found a verdict in favor of the plaintiff for $125.

We must, therefore, assume that the question of fact involved was solved in the plaintiff’s favor, and the verdict is sustained by the testimony and the circumstances developed upon the trial.

The judgment and order denying the motion for a new trial should be affirmed, with costs.

Brown, P. J., concurred; Cullen, J'., not sitting.

Judgment and order affirmed, with costs.


text:
    Carrie S. Lounsbury, as Administratrix, etc., of Perry B. Lounsbury, Deceased, Respondent, v. Wilson P. Foss, Appellant.

      Keepiwj of explosives — when a nuisance — liability therefor.

    Tlio keeping of gunpowder or otlier explosive materials in a place, or under circumstances where it will be liable, in case of an explosion, to injure the dwelling houses or tlio persons of those residing in eldse proximity, may constitute a private nuisance for which the person keeping such explosive will be liable to respond in damages, entirely without regard to the question whether he was chargeable with carelessness or negligence.
    The keeping of such materials does not necessarily constitute a nuisance^?’ se; that depends upon the locality, the quantity and the surrounding circumstances ; no person has a right, however, to carry on a business which is imminently dangerous to the community, and to persons who have occasion to pass in the vicinity of the place where such business is conducted.
    Appeal by the defendant, Wilson P. Foss, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rockland on the 20th day of February, 1894, upon the verdict of a jury rendered after a trial at the Rock-land Circuit, and also from an order entered in said clerk’s office on the 30th day of January, 1894, denying the defendant’s motion for a new trial made upon the minutes.

      Irving JBrovm, for the appellant.

      Roger Foster, for the respondent.
   Dykman, J.:

This action is brought for the recovery of damages resulting from the death of the plaintiff’s intestate, which was caused by the explosion of the dynamite works of the defendant.

The action is based upon negligence, but there are questions involved beyond those which ordinarily .relate to actions of that character.

The defendant was engaged in the manufacture of explosives near Snedeker’s Landing, in Rockland county, near to the Hudson river, and in the month of December, 1891, there was an explosion at the defendant’s factory by which the plaintiff’s intestate was instantly killed.

The defendant was the lessee of the land upon which his works were erected, and he claimed that the lease covered the land under water of the river in his front. Of that fact, however, there was no positive proof.

It was the claim of the plaintiff upon the trial that her intestate had permission from the agent of the defendant to land upon the beach of the river. In relation to this point there was also some dispute.

The case belongs to that class of cases where actions are brought for damages resulting from the prosecution of a legitimate business on the premises of the owner, which is dangerous to the persons of others who may be passing in their vicinity or to the property of others in their neighborhood. Hay v. Cohoes Co. (2 N. Y. 159); Tremain v. The Same (Id. 163); Myers v. Malcolm (6 Hill, 292) are examples of that class.

This action is to be controlled by the principles laid down in the case of Heeg v. Licht (80 N. Y. 579). It was there decided that the keeping of gunpowder or other explosive materials in a place or under circumstances where it will be liable, in case of an explosion, to injure the dwelling houses or the persons of those residing-in close proximity, may constitute a private nuisance for which the person so keeping them is liable to respond in damages in case of injury resulting therefrom, and that without regard entirely to the question whether he was chargeable with carelessness or negligence.

The keeping of such materials does not, however, necessarily constitute a nuisance per se; that depends upon the locality, the quantity and the surrounding circumstances.

The consequential result of the authorities is that each case like this must be left to the jury under proper instructions from the court.

That course was-pursued in this .case, and while the parties upon the trial put the question of negligence prominently forward, and the trial judge did the same in his charge, yet he did charge that no person has a right to carry on a business which is imminently dangerous to the community and to persons who have occasion to pass in that vicinity, and which is liable to cause an explosion and injury to people; that the maintenance of such a business is a nuisance per se, but that it depends upon the place where it is carried on and the manner in which it is prosecuted.

The last clause embodies the correct rule, and if either party desired it to be made more full and specific a request to that effect should have been made to the trial judge.

The verdict and judgment are in accordance with settled principle, and the judgment and order denying a motion for a new trial should be affirmed, with costs.

Brown, P. J., and Cullen, J., concurred.

Judgment and order affirmed, with costs.


author: Cullen, J.:

text:
    Samuel H. Davis, Appellant, v. Daniel P. Darling and Others, Respondents.

      One partner may not carry on, individually, the same business in competition with the firm — he may engage in real estate speculations — regulan' real estate business.

    A partner in a firm of real estate "brokers cannot carry on tbe same business as. that of the firm and retain the profits of such separate business for himself, as. such competition would be inconsistent with his duties to his co-partners.
    One partner may, however, by the assent of his co-partners, enter into real estate speculations, paying into the firm a commission upon the sales made in the course of such speculative transactions.

      Semble, that an agreement to engage in a “regular real estate business” limited the transactions to a brokerage business. .
    Appeal by the plaintiff, Samuel II. Davis, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 13th day of December, 1893, upon the report of a referee.

      George JD. Beattys, for the appellant.

      G. G. <& F. Reynolds, for the respondents.
   Cullen, J.:

This is an appeal from a judgment for the defendants entered upon the report of a referee. The action was brought for an accounting of the partnership transactions between plaintiff and defendants Daniel P. Darling and R. Elliott Darling. The partnership is admitted. The questions litigated on the trial and the subject of this appeal are whether the profits of certain ventures entered into by the defendant Daniel P. Darling should inure to the firm or to that defendant individually.

We think there can be no doubt as to the correctness of the interpretation of the contract of partnership adopted by the learned referee. The defendant Darling was a real estate broker and also a speculator in real estate. In 1880 the plaintiff and defendants Darling entered into a partnership under a written agreement. The partnership was renewed in 1883 and again in 1886, on both occasions also by written agreement. The agreements of 1880 and 1883 declare that the parties have agreed and do agree to associate them.selves as co-partners in the “ regular real estate, insurance and mortgage loan business.” Here arises the first difference between the parties. The defendants claim that the term “regular real estate business ” is to be interpreted as meaning the business of real estate brokers, not the business of operating or speculating in real estate. This the plaintiff disputes. On this question the referee held for the defendants, From our knowledge of general business terms or expressions we should have little doubt that the true meaning of this phraseology, unless varied by other provisions of the agreement or the situation of the parties, was a brokerage business. But all doubt is set at rest by the further provisions of the agreements themselves. In that of 1880 the contract recites, “ for the purpose aforesaid, he, the said Daniel P. Darling, hath * * * admitted the said Samuel H. Davis to a full one-half interest in said Real Estate, Insurance and Mortgage Loan .Brokerage business.” The agreement of 1883, in directing the distribution of profits, provides, “ in •all net profits arising from 1 said brokerage business,” etc. These declarations are conclusive as to what was intended to be the business of the co-partnership.

But the more serious question is whether, even on the construction we have given to the partnership agreements, the plaintiff is not entitled to share in the profits of the Cogswell and similar contracts. ~We may assume with the referee that while the other partners were obligated to give their entire time to the business, the defendant D. P. Darling was not. Still, admitting this, that defendant could not ■carry on the same business as that of the firm, and retain the profits for himself. This competition would be inconsistent with his duties to his co-partners. It is unquestionable in our judgment that he might have gone into an ordinary real estate speculation on his own account or with others. But by the Cogswell agreement the consideration or contribution which he made to the joint venture was “ the services of said Darling in the purchase thereof (the land) and his agreement to make sale thereof to the best of his ability.” Now this was the very trade or business of the firm. It is true that he further agreed to personally pay one-lialf of any loss on the venture. It may be that this would take the case out of the general rale, but it is not necessary to- determine that question in the view that we have taken of this case. The evidence shows that the plaintiff knew of at least some of these contracts. ' He knew that D. P. Darling was engaged in such operations, for he asked him for one of the latter’s contracts as a form, and having obtained it he entered into a similar speculation on his own account. He now says that lie intended the benefit resulting therefrom to accrue to the firm. "We think this very doubtful. In all cases of these speculations the regu- ■ lar commission of one per cent was paid' to the firm. The speculations themselves doubtless tended to increase the business of the firm. We think the referee could, on the evidence, well have found that the parties assented and agreed that any member of the firm might enter into such speculation, the firm receiving from the transaction the ordinary commissions on sales.

The Walsh matter seems to have been the individual speculation of the defendant Darling, which, under the construction which we have put upon the partnership agreement, he was at liberty to make. For these reasons we think the judgment should be affirmed.

The judgment appealed from should be affirmed, with costs.

Brown, P. J., and Dykman, J., concurred.

Judgment affirmed, with costs.


text:
    John McGonigle, Appellant, v. James P. Canty, Respondent.

      Personal injuries from a falling tree —act inherently dangerous — conflict of testimony.

    Upon the trial of an action brought to recover damages for personal injuries it was shown that the plaintiff was at work for the defendant on the foundation of a building within three feet of which was a tree forty feet high. While the defendant, who was a builder, was supervising the work of cutting down the tree started by his foreman, the tree fell, striking and injuring the plaintiff. There was no evidence to show that the direction in which the tree fell was due to any negligence on the part of the workmen who cut it down. On appeal from a judgment of nonsuit,

      field, that the nonsuit was improperly granted, as the jury might have found the act itself to have been inherently dangerous to persons who were near the tree, and that ropes or other appliances should have been used; *
    That testimony of the defendant, to the effect that he gave warning to his workmen some minutes before the tree fell, and the plaintiff’s denial that he received any word in regard to the same until the tree was actually falling, should have been submitted to the jury.

      Appeal by the plaintiff, John McGonigle, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 26th day of March, 1894, upon the verdict of a jury, directed by the court, after a trial at the Westchester Circuit, dismissing the plaintiff’s complaint upon the merits, and also from an order entered in said clerk’s office on the 31st day of March, 1894, denying the plaintiff’s motion for a new trial made upon the minutes.
    <7. II. (& J. A. Yoxmg, for the appellant.
    AT. J. Keogh, for the respondent.
   Cullen, J.:

This is an appeal from a judgment entered in favor of the plaintiff on a nonsuit at Circuit. The action was brought by a servant against his master for personal in j uries. The defendant was a builder ■engaged in the erection of a house, the plaintiff a mason in his employ. The plaintiff was at work on the foundations of the building, which were nearly completed. A tree stood so near the foundation that it became necessary to cut it down. When cut it fell partly on the foundation and the plaintiff was injured.

We think that the complaint should not have been dismissed. 'The tree was some forty feet high and stood within three feet of the foundation. The defendant was present, and there was evidence to show that he was personally supervising the work of cutting down the tree, though that work had been started by his foreman. There is no evidence to show that the direction in which the tree fell was ■due to any negligence of the workmen who cut it. It was, therefore, not the case of negligence by a co-servant. But we think that the act itself was inherently dangerous to persons who might be near the tree, or, at least, that the jury might have so found, and might also have found that appliances, such as ropes, should have been used, and that the men at work on the foundation ■should have been warned and called off before the tree was about to fall. The defendant testified that he did give such warning some minutes before the tree fell, but the plaintiff denied that he received any word until the tree was actually falling. We think that these facts made a case for the jury.

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

Brown, P. J\, concurred; Dykman, J., not sitting.

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


author: Cullen, J.

text:
    Anna Devine Ritter, Respondent, v. Fannie A. Devine and Others, Appellants.

      Action to set aside a mortgage — use of word “conspiracy” in, the complaint — misstatement on a sale as to prior liens.

    The use of llie term “ conspiracy," iu tlie complaint in an action brought to set aside a mortgage on the ground of fraud, does not affect the cause of action, and if it is shown that through deception and mistake the morlgagor has been induced to create a greater liability than she intended, she is entitled to relief against so much of the liability as was procured by fraud and mistake.
    Where the notice of sale of property, under the foreclosure of a mortgage, incorrectly and unfairly stated the amount due on prior incumbrances, subject to which the property was sold, the sale should not be allowed to stand.
    Appeal by the defendants, Fannie A. Devine and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 28th day of February, 1894, upon the decision of the court rendered after a trial at the Queens County Special Term. _

      M. L. Hollister and John II. Inness, for the appellants.

      Mirabecm I. Towns and Raphael J. Moses, for the respondent.
   Cullen, J.

This is an appeal from a judgment of the Special Term in favor of the plaintiff. The defendant Fannie A. Devine brought an action for separation against her husband, Thomas Devine, who is the son of the plaintiff. In that action in April, 1883, she recovered judgment by which the husband was ordered to pay alimony at the rate of seven dollars per iveek, and to give a hond in $1,000 with surety to secure such payment. By an order made pending the action, the defendant therein was directed to pay five dollars a week as temporary alimony, and at the time of the entry of the judgment the unpaid alimony under this order amounted to $135. Thomas Devine absconded before judgment, but returned to this State in 1888. Upon learning of his return the wife’s attorney, the defendant Inness, obtained an attachment for the unpaid temporary alimony under which the husband was arrested. Upon his arrest negotiations to procure his release were liad between the defendant Inness, the husband and his mother, the present plaintiff. These negotiations resulted in the execution by the plaintiff of a bond and mortgage for $150 ($135 alimony and $15 sheriff’s fees on arrest) payable in three years ; a bond in $1,000, as required by the decree in the separation action, a stipulation reducing the alimony to five dollars per week and a mortgage without bond which recited the decree and the reduction of the alimony to five dollars a week, and mortgaged the lands described therein to secure the payment of the alimony ordered by the decree, with the provision that on default in the payment of any alimony continuing for ninety days the lands mortgaged could be sold. In the year 1889 the mortgage for $150 was foreclosed by advertisement, the notice of sale stating the premises to be subject to the other mortgage on which there was then due the sum of about $2,026. On the sale the premises were purchased by the defendant Alfred Devine, the son of the defendant Fannie A. Devine. In 1893 the plaintiff brought this action, alleging that said mortgages were procured from her by fraud, and asking judgment that such mortgages and the sale under foreclosure be declared void. The court at Special Term found that the alimony mortgage was signed by the plaintiff under the belief that the limit of the amount to bo secured by it was the amount of the bond, $1,000, and that she was deceived and misled into that belief. An account having been taken of the rents and profits, judgment was entered declaring the mortgage to be security for the sum of $1,000 only, setting aside the sale and providing for a redemption by the plaintiff upon paying the amounts still due on the mortgage after charging the defendants with the rents.

We think that there was no such variance between the case made by the plaintiff on the trial and that stated in the complaint as precluded the co\n-t from granting relief. While she did not show such deception and mistake as entitled her wholly to avoid the mortgages which she liad executed, if she proved that by deceit she had been induced to create a greater liability than was intended she was entitled to the relief against the excess procured by fraud and mistake. The use in the complaint of the term “conspiracy” does not affect the cause of action. It was simply an action to set aside the instruments on the ground of fraud.

This brings us to the question whether the trial court erred in its finding of fact that the mortgages were procured by deceit and mistake. "We think the evidence justifies the findings in this respect. The plaintiff was a woman characterized by the defendant Inness in his letter to the public administrator as “ ignorant and unfitted for business,” and as appears by her evidence in this case probably justly so characterized. She had no lawyer present to aid .her in the negotiations from which the mortgages proceeded. The defendant Inness, the counsel for the plaintiff in the separation action, Eannie A. Devine, drew all the papers. It is not necessary to rely on the testimony of the plaintiff. It is sufficient to assume the correctness of the statement of the defendant Inness. He narrates the conversation between himself and the plaintiff. He told her that in addition to the $13o arrears of alimony for which her son was arrested a bond of $1,000 to secure the payment of the alimony was required by the judgment. He told her that her son said she was willing to give this security. She consented to execute the bond and did execute it. They then spoke of a reduction of the alimony. “ I asked Mrs. Devine if I should assent * * * to this reduction (of the alimony) from $7 to $5 per week whether she was willing to secure that by mortgage upon the property, and she said that she was.” Rearing in mind the previous reference to the bond of $1,000, and her execution of it, we think the fair and reasonable construction of this conversation was that the bond of $1,000 should be secured by the mortgage. If it was intended that instead of security for $1,000, the mortgage should be an obligation upon which $1,380 (alimony at $5 a week) would be due at the very instant of its execution, and which should cover all alimony which might subsequently accrue, common fairness dictated that “ an ignorant woman unfitted for business” should have been fully apprised of the change in amount and extent of the obligation. It is further to be observed that while the plaintiff is given three years to pay the $150, the other mortgage is so drawn that ninety days after a default in payment of the alimony a foreclosure of it could be instituted for the $1,380 of alimony past due. These facts justified the findings of the Special Term.

As the notice of sale incorrectly and unfairly stated the amount due on the prior incumbrances subject to which the property was sold, the sale should not be allowed to stand.

The judgment appealed from should be affirmed, with costs.

Brown, P. J., and Dykman, J., concurred.

Judgment affirmed, with costs.