text:
    Jackson Montgomery, as Sole Overseer of the Poor of the Town of Spencer, on the Relation of Seymour Seeley and Horace A. Hugg, Respondent, v. Marcellus C. Odell, Appellant.

      The Skoaise Law — action for penalties, in the name of the overseer of the poor, on his refusal to prosecute — deposit by the informers, with the county treasurer, as security for the defendant’s costs.

    An action prosecuted in tlie name of the overseer of the poor of a town, by certain informers, to recover a penalty under the Excise Law of 1857 (Chap. 628), as authorized by section 30, as amended by chapter 820 of the Laws of 1873, on the refusal of the overseer to prosecute, was entitled in the name of the overseer “ on the relation of” the informers, naming them; the defendant obtained an order under sections 3271 and 3272 of the Code of Civil Procedure, upon the theory that the action was brought by “a person expressly authorized by statute to sue,” requiring the informers to give security for costs, if any, awarded against them, under this order the informers deposited $250 with the county treasurer, thereafter the complaint was dismissed at Circuit, and a judgment was entered, directing that the defendant recover of the “ plaintiffs ” his costs, which judgment was affirmed by the General Term, with costs.

      Held, that the informers were not “ plaintiffs ” in the action;
    That the judgment rendered at the Circuit against the “ plaintiffs” must be considered as having been rendered against the overseer alone, and the affirmance of the General Term must be considered as operating against him only, and judgment thereon should be entered against his name only;
    And that the defendant was not entitled to an order directing the county treasurer to pay to the defendant the amount of his costs out of the money deposited by the informers.
    Appeal by the defendant, Marcellus C. Odell, from an order of the Supreme Court, made at Special Term and entered in the office of the clerk of Tioga county on the 28th day of March, 1893, denying the defendant’s motion for an order directing the county treasurer of Tioga county to pay to the attorney for the defendant herein, from money deposited with him, the sum of one hundred and sixty-four dollars and thirty-four cents ($164.34).
    The facts and the questions presented are set forth in the following opinion rendered at Special Term, and approved by the General Term:
    “ Panker, J.:

      “ Section 22 of the Excise Law of 1857 (Chap. 628), as amended by chapter 820 of the Laws of 1873, provides that the penalties imposed by such law shall be sued for and recovered in a civil action by and in the name of the overseer of the poor of the town in which the alleged penalty was incurred, and the recovery shall be paid to the treasurer of the county for the support of the poor of the county. In case the overseer shall, after proper application made to him, refuse to prosecute, any other person is, by section 30 of such law, as amended by the same act, allowed to prosecute therefor in the name of such overseer
    “ Jackson Montgomery, the overseer of the poor of the town of Spencer, having refused to prosecute for the penalty claimed in this action, Seymour Seeley and Horace A. Hugg brought this action under the above-cited statute and in the above-entitled form. At the Circuit a judgment was entered dismissing the plaintiffs’ complaint and adjudging that the defendant recover of the plaintiffs the sum of seventy dollars and eleven cents, costs and disbursements, and that he have execution therefor. Such judgment was affirmed ■ by the General Term, on an appeal therefrom, and one of the questions now presented is whether the judgment entered on such affirmance may provide that the respondent and defendant recover from Seymour Seeley and Horace A. Hugg the costs on such appeal, or whether such judgment should simply provide that he recover from the plaintiff the costs of such appeal.
    “ During the pendency of such action, the defendant procured an order of this court requiring Seymour Seeley and Horace A. Hugg ' to either pay into court the sum of $250, to be applied to the payment of the costs, if any, awarded against them, or, at their election, file with the clerk of Tioga county an undertaking, to be executed to the defendant, by them and two sureties, to the effect that they will pay upon demand to the defendant all the costs which may be awarded to him in the action, not exceeding $250, etc. Such order was asked for and obtained under the provisions of sections 3271 and 3272 of the Code, and upon the theory that the action was brought by ‘ a person expressly authorized by statute to sue.’ In obedience to such order, Seymour Seeley and Horace A. Hngg paid into court the sum of $250, and duly notified the defendant of such, payment, and the action proceeded with the result above stated.
    “ The defendant now asks for an order that there be paid to him, from such sum of $250, the amount of the two judgments for costs rendered in his favor.

      “ Seymour Seeley and Horace A. Hugg object to such payment on two grounds: First. They claim that they are not the plaintiffs in this action, and, therefore, the order should have required Montgomery, and not them, to have filed the security; and, secondly, if the order be deemed correct, no costs have as yet been awarded against them, and, hence, no money can as yet be paid over under such order.
    “ The statute under which this action is prosecuted requires it to be done in the name of the overseer of the poor, and such requirement seems to fix upon that officer as the one who must act as plaintiff in the action. If the recovery is had, the judgment should be in Ms favor, as he is responsible that the proceeds be paid over to the county treasurer, and if judgment goes in favor of the defendant, it would seem that it must be rendered against such officer, as I know no rule which requires the name of the person instigating the action to appear in any place or form upon the record.

      “ It is tru,e that in this action it is stated that the overseer sues on the relation of Seymour Seeley and Horace A. Hugg, but such a statement is entirely superfluous. If such fact had not appeared, and tlieir names had nowhere been given on the record, the right of such overseer to bring the action could not have been questioned, nor would it have been any defense to the action that they, rather than the overseer, were the persons who were really prosecuting it. (Thayer v. Lewis, 4 Den. 269; Oowrs., ete., v. P-urdy, 36 Barb. 266.)
    “ Persons cannot be considered as plaintiffs whose names need not necessarily appear on the record. I conclude that the judgment rendered at the Circuit against the plaintiffs must be considered as having been rendered against' the overseer alone, and not against Seeley and Hugg ; and the affirmance of that judgment, with costs, by the order of the General Term, must be considered as operating against him only, and judgment upon such order should be entered against Ms name alone. In short, he is to be considered as plaintiff and appellant, and no judgment whatever could be entered in this action against Seeley and Hugg. Therefore, the motion requiring the judgment entered on the order of the General Term to be corrected, must be granted. As to the motion on the part of the defendant, for an order directing his costs to be paid from the $250 deposited by Seeley and Hugg, it is based entirely upon the order requiring them to deposit such sum. It is not entirely clear that the persons who bring such an action as this, in the name of the overseer, can be required to file security for costs of the action. Section 3271 provides that the court, in its discretion, may require the plaimtiff to file such security, where the action is brought1 by a person expressly authorized by statute to sue,’ and as I have stated above, it seems to me that such persons can in no sense be considered the plaintiffs in the action.
    “ By the act of 1845, chapter 300, persons were allowed to sue for similar penalties under similar circumstances to these, but they were first required to give security to the overseer for the costs of the action. That statute was repealed, and, by the statute of 1873 above cited, no security whatever seems to be required; and I do . not discover any way in which the town or overseer can now compel such persons to secure them against the costs of such action.
    “ The decisions are somewhat confused. In Sharpe v. Rancher (29 Hun, 193) it seems to be held that, under section 3271, such persons may be required to file security for costs, although, from the opinion itself, it seems to be authority for nothing more than that the plavntiff in such action may be required to file such security In Record v. Messenger (8 Hun, 285) the same court, after saying that they are not then called upon to decide whether the persons prosecuting such an action in the name of the overseer, would be liable for costs, use this language ; £ Doubtless, costs would, by the record in that case, go against the officer as such, and it may be a question, perhaps, whether, inasmuch as the law provides for the prosecution of this action by persons other than the overseers, in the name of the latter, the same rule would not apply as in the case of an action prosecuted by the officer himself.’ By this I understand is meant that the town might be liable for costs in the same way that it would be if the officer prosecuted on his own motion, and such reasoning seems to be based on the theory that the officer is the plaintiff, and that on the record costs go against the plaintiff, but to be paid by the town, for whose benefit the action is prosecuted, whether it is brought by the overseer on his own motion or by others in his name. It is held at Special Term (In- re Manrtvn, 7 N. Y. Civ. Broc. Rep. 399) that section 3271 does not authorize the court to compel such persons to file such security, and a similar decision is made at General Term, in Gomrs., etc., v. McGrath (27 Hun, 425).
    “ I shall, of course, on this motion, consider the order requiring Seeley and Ilugg to deposit this money as regular and properly made, but, by its terms, such money is to be applied to the payment of such costs as shall be awarded against them. Neither of the judgments which defendant has obtained award any costs against Seeley or Hugg. Even if they, are to be considered as plaintiffs in the action, costs go against them personally only in the event that the court so orders on account of their mismanagement or bad faith (Code, § 3246), and for tliis reason defendant has not acquired any right, under the order, for the relief which he asks. The defendant’s motion, therefore, must be denied. Costs are allowed in the motion by Seeley and and Hugg tó correct the judgment entered on the order of the General Term, but none are allowed on the defendant’s motion to apply the moneys deposited to the payment of his judgments.”

      Edward E. Deem, for the appellant.

      W Martin Jones, for the respondent.
   Hardin, P. J.:

This action was brought by an officer in his official capacity, and no execution can be issued upon a judgment recovered against him in his official capacity. (Code Civ. Proc. § 1931.) Such a judgment as has been entered in this action may be collected of the town for which the plaintiff, as overseer, acts. (Thayer v. Lewis, 4 Den. 273; Avery v. Slack, 19 Wend. 50; The People ex rel. Allaben v. The Board of Supervisors of Delaware County, 12 How. 50.) The money deposited with the county treasurer was placed there by the informers; they are not plaintiffs in the action; no judgment has been rendered against them. The money needed to indemnify the town against any loss it may sustain by reason of being obliged to pay any judgment rendered in this action, may be claimed by the town or the officer in its behalf. Such portion of the money as shall not be needed to indemnify the town may be claimed by the persons making the deposit. In those controversies the defendant has no vested interest. Nothing is shown by the papers presented upon the motion to indicate that the defendant has not a perfect remedy for the recovery of the costs awarded to him by pursuing the usual methods to enforce judgments in such a case as this. These views, together with those suggested in the opinion of Parker, J., at Special Term, lead me to advise an affirmance of the order.

Merwin, J., concurred; Martin, J., not voting.

Order affirmed, with ten dollars costs and disbursements.


source: Caselaw Access Project

author: Hardin, P. J.: Martin, J.: Meravin, J.:

license: Public Domain

text:
    Mary J. Adams, Respondent, v. Maria A. Fassett and Others, Appellants.

      Action to chaA'ge devisees with a debt of their testator — effect of section 1848 of the Code of Civil Procedure — debt upon a promissory note — the ten and siwyewsf limitations — extension by a statutory stay of action.

    The effect of section 1848 of the Code of Civil Procedure is to enlarge the rights of creditors of a decedent, by permitting recoveries against devisees for debts of their testator when it appears that the plaintiff will be unable with due diligence to collect his debt, by proceedings in the proper Surrogate’s Court, and by action against the executor or administrator.

      Semble, that an action brought to charge devisees, to the extent of the real property devised to them (Code Civ. Proc. § 1843), with a debt of their testator upon a promissory note, is one which falls within section 388 of the Code of Civil Procedure, which provides that an action referred to therein must be commenced within ten years after the cause of action accrues.
    If, however, such an action is controlled by section 383 of the Code, which provides that actions mentioned therein must be commenced within six years after the cause of action has accrued, that period is subject, by force of section 406 of the Code, to extension by the three years’ statutory stay from the death of the testator imposed by section 1844 of the Code.
    An action brought against devisees, to charge them with debts of their testator upon two promissory notes made by him, was commenced February 10, 1893. It appeared that the last payments made upon the notes by the testator or in his behalf were payments of interest on June 3,1884, and August 5,1884, respectively. The testator died October 1,1884; his will was admitted to probate May 31,1891, and letters of administration with the will annexed were issued January 30, 1893. field, that whichever Statute of Limitations was applicable, it must be regarded as having commenced to run at the last payments on the notes in 1884;
    That the case was controlled either by the ten years’ limitation of section 388 of the Code of Civil Procedure, or by the .six years’ limitation of section 383 as extended to nine years by the three years’ stay from the death of the testator imposed by section 1844;
    And, hence, that the action was commenced in time.
    Appeal by tlie defendants, Maria A.-Fassett and others, from a judgment of the -Supreme Court in favor of the plaintiff, entered in the office of the clerk of Jefferson county on the 12th day of June, 1893, upon a decision of the court rendered after a trial by the court at the Jefferson Special Term.
    The action was brought against the devisees under the last will and testament of John Fassett, deceased, who died October 1, 1884, leaving a will devising to the defendants lands which are described in the complaint, to enforce the liability for the debts of the testator declared by section 1843 of the Code of Civil Procedure. The debts are upon two notes given to the plaintiff in 1878 by the testator and his son Milan Fassett.
    The answer of the defendants contains several denials, and then states as follows: “Allege that the said several supposed causes of action therein set forth did not, nor did any or either of them, accrue at any time within six years next before the commencement of this action, nor within six years and such additional time as is allowed to the plaintiff for the commencement of this action by reason of the death or the failure to issue letters testamentary on the will of John Fassett, deceased.” The will of John Fassett was admitted to probate May 31, 1891, and letters of. administration with the will annexed were issued to Maria A. Fassett January 20,' 1892, and this action was commenced the 10th of February, 1892. It is found as a fact that the assets of the deceased were not sufficient to pay plaintiff’s debts, and that she “ will be unable, with due diligence, to collect her debt by proceedings in the proper Surrogate’s Court, or by an action against the administrator with the will annexed, or legatees or next of kin of said deceased; ” and that the deceased left “ no real estate which descended to his heirs.” It is found as a fact, viz.: “ That prior to the death of John Fassett the interest was paid on said notes annually by said testator or his son Milan as his agent in his (testator’s) behalf and indorsed thereon, the last indorsement prior to his decease being dated June 2, 1884, and August 5,1884, on said notes respectively.” The court awarded judgment in favor of the plaintiff for the amount of the notes “ and declaring the same to be a lien upon and collectible out of the real property described in the complaint, with costs, such recovory to be apportioned in the manner prescribed by law between the defendants according to the value of their several devises.”

      Brown <& Admns, for the appellants.

      Rogers <& AUoell, for the respondent.
   Hardin, P. J.:

Section 1843 of the Code provides that “ Devisees of a testator are respectively liable for the debts of the decedent, arising by aim-pie contract, or by specialty, to tbe extent of the estate, interest and right in the property, which * * * was effectually devised to them by the decedent.”

In Read v. Patterson (134 N. Y. 130) the history of the legislation leading up to the enactment of section 1843 of the Code is given, and at page 136 of the opinion it is said that it is quite apparent that section 1848 of the Code enlarges the rights of creditors by permitting recoveries “ when it appears that the creditors will be unable, with due diligence, to collect their debts by proceedings in the proper Surrogate’s Court, and by action against the executor or administrator.” The defense of the Statute of Limitations interposed must fail if we follow Mortimer v. Chambers (63 Hun, 342) and the cases there cited. (See, also, Hulbert v. Clark, 128 N. Y. 295; Code, § 388; Mead v. Jenkins, 27 Hun, 573; S. C. affd., 95 N. Y. 31; Malloy v. Vanderbilt, 4 Abb. N. C. 130.)

(2) The essential facts found by the trial judge seem to be supported by the evidence.

The judgment should be affirmed, with costs.

Martin, J.:

The evidence that the interest was paid on the debt or notes which were the basis of this action, by the testator, or for him, up to 1884, was not as full and complete as might be desired. That the interest was paid there is no doubt. But that it was paid by or for the testator is not so clear. Still I am disposed to think that it was sufficient to sustain the finding of the court upon that question. Hence, in considering whether this action was barred by the Statute of Limitations, the statute must be regarded as having commenced to run in 1884.

The trial judge held that the action was not barred, as it was governed by section 388 of the Code, and could be brought within ten years after the statute commenced to run. The cases of Wood v. Wood (26 Barb. 356); Salisbury v. Morss (7 Lans. 359; affd., 55 N. Y. 675), and Mortimer v. Chambers (63 Hun, 335) sustain that conclusion.

If, however, the ten years’ limitation was not applicable, and the action was controlled by section 382, which provides that the actions herein mentioned shall be brought within six years, still the action was not barred. Section 406 provides that wliere the commencement of an action has been .stayed by statutory prohibition, the time-of the continuance of tlie stay is not a part of the time limited for the commencement of an action. By referring to section 1844 it will be seen that this action- could not have been brought until after three years had elapsed since the death of the decedent. Thus the action was stayed by statutory prohibition for that period, and the three years during which it was thus stayed was not a part of the time limited for its commencement. Hence, the plaintiff, in effect, had nine years from the time of the last payment within, which to bring this action. (Mead v. Jenkins, 27 Hun, 570 ; S. C., 29 id. 253; Mortimer v. Chambers, 63 id. 344; Malloy v. Vanderbilt, 4 Abb. N. C. 127, 130.)

I think the judgment should be affirmed.

Meravin, J.:

I concur in affirmance.

Judgment affirmed, with costs.


author: Hardin, P. J.:

text:
    In the Matter of the Application of Louisa Harlow, for an Order Opening, etc., the Decree of the Surrogate’s Court of Tompkins County, Admitting to Probate the Last Will and Testament of John Lyons, Deceased.

      Surrogate’s Court — vacation, by a surrogate, of a decree admitting a will to probate ■ — ■ defective service of citation — Code of Civil Procedure, section 2481, subdivision 6.
    A decree of a Surrogate’s Court admitting a will to probate should be opened and vacated by the surrogate, upon an application made under subdivision 6 of section 2481 of the Code of Civil Procedure, as to an heir at law of the decedent who did not appear in the proceeding for probate and was not brought before the court by service of the citation in accordance with the requirements of law.
    Appeal by Ann E. ITeath, formerly known as Ann E. Beardslee,. administratrix with the will annexed of John Lyons, deceased, and a legatee named in the will, from an order of the surrogate of Tompkins county, entered in tbe Surrogate’s Court of tliat county on tbe 2d day of September, 1892, wbicli opened and vacated, as to Louisa Harlow, a decree of said Surrogate’s Court, made and entered July 13, 1885, admitting tbe will of John Lyons, deceased, to probate, •and which also denied a motion made by tbe appellant to dismiss the application of Louisa Harlow to open and vacate the said decree.
    In December, 1881, Ann E. Beardslee presented a petition to tbe Surrogate’s Court, asking probate of tbe will of tbe deceased, and in that petition stated tbe residence of tbe parties named as tbe heirs at law, and tbe words of tbe petition relating to tbe respondent were, viz.: “ Louisa Harlow, who resides at 59 Rush street, Chicago, Illinois.” After tbe presentation of tbe petition an order was made in February, 1885, and in the order tbe language relating to tbe respondent was as follows: “ Louisa Harlow, who resides at 57 Rush street, Chicago,” in that portion of the order containing recitals, and in that portion of tbe order which provided for tbe service of citations, tbe language used as to tbe respondent was as follows: “ Louisa Harlow, 57 Rush street, Chicago; ” and tbe ¡order also contained a provision for tbe publication of tbe citation in two newspapers, to wit: “ In tbe Wzeldy Journal, published in Ithaca, New York, once a week for six successive weeks, or at tbe option of tbe petitioner, by service of tbe citation, and a copy of this order upon tbe persons so cited, without tbe State; ” and tbe order provided also for a deposit of copies of tbe citation, among other’s to be directed to “ Louisa Harlow, 57 Rush street, Chicago, Illinois.” By the affidavit of C. L. Smith, it appears that on tbe 3d of February, 1885, be deposited in tbe post office in tbe village of Ithaca copies of tbe citation and orders for publication directed to “ Louisa Harlow, 57 Rush street, Chicago, Illinois.” In February, 1892, Louisa Harlow, an heir at law of the deceased, presented a petition to tbe Surrogate’s Court asking to have tbe decree admitting tbe will of tbe deceased to probate entered in July, 1885, opened. In tbe petition presented by tbe respondent asking to be relieved from tbe decree admitting tbe will to probate, she alleges as follows: “Your petitioner further shows that no citation to attend tbe probate of tbe last will and testament of said John Lyons, deceased, was ever served upon your petitioner in tbe manner prescribed by law, and your petitioner never received any citation or notice of any proceeding to prove said alleged will or any will whatsoever of said John Lyons, and your petitioner never had any notice or knowledge of any of the above-mentioned proceedings in the Tompkins Cbounty Surrogate’s Court until several years after said alleged will was admitted to probate as aforesaid.”
    The order appealed from contains the following language: “ Ordered, That the motion to dismiss be, and the same is hereby denied on the ground that the surrogate has not the power to exercise his discretion as to granting or refusing to grant the motion to open the decree, and the motion to open the decree is hereby granted to this extent, to wit, * * * opened and vacated as to said Louisa Harlow. But said decree shall remain in full force and effect as to all other parties interested in said proceedings. And the letters of administration with the will annexed of said deceased shall remain of full force and virtue until the determination of further proceedings in this matter. And this order is made on the ground that the surrogate, Hon. Bradford Almt, holds that he has no power to refuse the apj>lication to open the decree as to said Louisa Harlow, the said petitioner, and has no power to exercise his discretion as to refusing or granting this order.”

      G. L. Smith and M. M. Waters, for the appellant.

      Demid M. Dean, for the respondent.
   Hardin, P. J.:

Subdivision 6 of section 2481 of the Code of Civil Procedure, which relates to the power of the surrogate to open, vacate, modify or set aside a decree of his court, provides that “ Upon an appeal from a determination of the surrogate, made upon an application pursuant to this subdivision, the General Term of the Supreme Court has the same power as the surrogate; and his determination must be reviewed as if an original application was made to that term.”

In the course of the opinion delivered in Matter of Tilden (67 How. 449) it was said : “ Under this authority the entire controversy presented by the pétition and the answer to it, is to be considered upon the appeal in the same manner in which the surrogate himself had the authority to consider it; ” although that case was reversed (98 N. Y. 442), the doctrine found in the quotation just made was not disturbed.

In Bailey v. Stewart (2 Redf. 213) it was held that “ The surrogate has power to open, vacate or modify his probate of a will, whether of real or personal estate, or both,” and an extensive examination of the authorities bearing upon that question was made by Surrogate Calvin. The same doctrine was referred to in Matter of Wood (29 N. Y. St. Repr. 299) in the following language : Section 2481, subd. 6, gives the surrogate the same power over the judgments and decrees of his court as is possessed by courts of record, and the power of such courts to vacate unauthorized judgments upon proper notice to the parties to be affected has never been questioned ; ” and in The Matter of the Accounting of Hawley (100 N. Y. 212) it seems to be conceded in the opinion “ That every court of record has an inherent power over its own records, to modify,, amend and vacate them independent of the special authority conferred by statute.” It appeared by the petition presented that the residence of Louisa Harlow was 59 Rush street, Chicago, Illinois. The order for the deposit of a copy of the citation was to the effect that it should be directed to her as Louisa Harlow, 57 Rush street, Chicago, Illinois.” The service of the citation was defective. The surrogate did not acquire jurisdiction over the person of Louisa Harlow. She never had her day in court upon the subject-matter involved in the application for the probate of her relative’s will. (Fetes v. Volmer, 8 N. Y. Supp. 294.) It also appears that the order for publication was defective in misdescribing the journals in which the publication was to and actually did take place.

Appellant calls our attention to Durant v. Abendroth (97 N. Y. 133). We think it does not aid his position. In the course of the opinion in that case, Rapallo, J., said “ That a judgment operates in personann only upon the parties appearing before the court, or brought before it by proper process.” We think the respondent was entitled to service of jirocess in accordance with the requirements of law before her rights as heir, at law of the deceased could be taken away by any proceeding had in the Surrogate’s Court. The-order appealed from cautiously observes the rights of all parties under the decree, and gives the respondent, Louisa Harlow, the right to be heard upon the questions relating to the probate of the will of the deceased.

The order should be affirmed, with costs to the respondent payable out of the estate.

Martin and Merwin, JJ., concurred.

Order affirmed, with costs to the respondent payable out of the ■estate.


author: Hardin, P. J. :

text:
    Caroline Bullion, Respondent, v. Charles A. Bullion and Another, Appellants.

      Action to set aside a transfer of property as fraudulently obtained —negligence no bar — reversal upon questions of fact —evidence — reference to state an account — requests to find — appeal from an interlocutory judgment, not authorized before 1898.
    Where one sues another for negligence, his own negligence contributing to the injury constitutes a defense to the action; but where one sues another for positive willful wrong- or fraud, negligence by which the party injured exposed himself to the wrong or fraud will not bar relief.
    Upon the review of questions of fact, to justify a reversal it must appear that the findings of fact were against the weight of evidence, or that the proof so clearly preponderated in favor of a contrary result that it could be said, with a reasonable degree of certainty, that the trial court erred in its conclusions.
    What evidence is sufficient to sustain the finding by a referee that a transfer of property from a mother to her son was fraudulently obtained and was void.
    In an action brought to set aside a transfer of property on the ground that it had been fraudulently obtained, it is not error to allow evidence of the plaintiff to remain in the case to the effect that she did not understand the wilting in question to be a deed when it was read over to her, and that she supposed it to be a lease. «•
    Nor is it a good ground of objection by the defendant that the plaintiff is allowed to testify that she put all the confidence in the world in her son, to whom the transfer was made, and did not suppose he would take advantage of her, where the effect of her testimony previously given upon direct and cross-examination indicated that she had confidence in her son, and that at the time she was not laboring under any supposition that he would take advantage of her.
    Upon the trial, in response to the question “What did you go to Monticello for ?” the plaintiff, under the objection of the defendants, testified, “Wont to draw writings; we were going to rent the farm. lie sent for him before we got there; we had set a day and he knew we were coming on such a day to draw writings.”

      Held, that no error was committed in receiving the answer.

      What provisions laid down by the referee in such a case, providing for the appointment of a referee to state an account between the parties and laying down a rule for his guidance upon such reference, are equitable.
    Where a request to find presents more than one proposition, a referee is not bound to analyze it and pass upon the several parts separately.
    Prior to the taking effect of the amendment of section 1349 of the Code of Civil Procedure made by the Legislature of 1893, an appeal from an interlocutory judgment was not authorized, and though no question might be raised by either party as to its regularity, the General Term had not power to entertain such an appeal.
    Appeal by the defendants, Charles A. Bullion and Ettie Bullion, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Otsego on the 27th day of June, 1893, upon the report of a referee, with notice of an intention to bring up for review upon such appeal the interlocutory judgment dated the 27th day of June, 1893.
    The plaintiff is the mother of the male defendant, who, according to the findings of fact, fraudulently obtained a transfer of her personal property and a conveyance of her real estate to him, which, by the conclusions of law stated by the referee, were void and were set aside.
    „ The referee, in his conclusions of law, provided:
    “ That a referee be appointed by the court to take and state the account between the plaintiff and - defendant Charles A. Bullion, of all matters upon the one side relating to monies advanced and expended for, or on account of, permanent improvements upon said farm and taxes, the payment of debts against the plaintiff for monies expended for, or on account of, her or her husband ; and, on the other hand, on account of all property received by the said Charles from his mother and not returned, for the use and occupation of the premises during the time that he has occupied the same, and of all matters that he has received from his mother in connection with or in said transaction, and that the party in whose favor a balance shall be found to exist upon such accounting have judgment therefor against the other upon the coming in of said referee’s report, with such costs of said accounting as the court may think proper to allow.”

      Albert O. Terma/nt, for the appellants.

      Ediek c& /Smith, for the respondent.
   Hardin, P. J. :

Upon the evidence before the referee he found the general features of the relations of the parties to each other, prior to the interview which took place in the presence of an attorney who was employed to prepare the papers that-had been under contemplation, and referred to in the negotiations had .between the plaintiff and the male defendant. Upon the evidence, somewhat conflicting, the referee has found in accordance with the testimony delivered by the plaintiff, giving her credence instead of believing the testimony given by the defendant upon the subject of the transfer of the property by the plaintiff to her son.

In Albany City Savings Institution v. Burdick (87 N. Y. 49) it was said : “ It is certainly not just that one who has perpetrated a-fraud should be permitted to say to the party defrauded, when he demands relief, that he ought not to have believed or trusted him. Where one sues another for negligence, his own negligence contributing to the injury will constitute a defense to the action; but where one sues another for a positive willful wrong or fraud, negligence by which the party injured exposed himself to the wrong or fraud will not bar relief. If the rule were otherwise, the unwary and confiding; who need the protection of the law the most, would be left a prey to the fraudulent and artful practices of evil-doers.” The doctrine just quoted was approved in Smith v. Smith (134 N. Y. 65), and Landon, J., said of it, viz.: “It does not, in cases like this, impute inexcusable negligence to that omission of vigilance and care which is procured by the fraud of the wrongdoer.” The referee found expressly “that Charles A. Bullion, at the said time, was-in the prime of life, in full health, and fully understood the nature-of the transaction in which he was engaged; knew that the result ivas to convey to him the fee of said land and the title to all the property, personal and real, of every description, that belonged to his mother, and that she was left entirely destitute and dependent upon him; and that he was giving her no consideration whatever, further-than what was contained in the agreement to support her, and a few privileges mentioned therein ; that he was giving no security for the. faithful performance of his agreement, and knew that in procuring said deed of said farm, and said transfer of personal property, was a fraud upon his mother; and I find from the proof, as matter of fact, that the said deed and transfer of personal property were fraudulently procured by the defendant Charles A. Bullion.” This finding is contested very stoutly by the appellants, and it is insisted that many facts and circumstances are disclosed in behalf of the defendants that are inconsistent with the finding and conclusion of the referee. On the other hand, it is contended in behalf of the respondent, that the testimony given by the plaintiff, considered in the light of the circumstances disclosed by the relations between the parties, and the transactions in which they were actors, and due deference being given to the version produced by the plaintiff where there is a conflict in the testimony, that the referee was warranted in reaching the conclusion stated in the finding just quoted. In disposing of the finding of fact which is so stoutly challenged by the appellants, we are disposed to apply to it the rule found in Baird v. Mayor (96 N. Y. 577), in which case Rttgeb, Oh. L, said: “To justify a reversal it must appear that such findings were against the weight of evidence, or that the proofs so clearly preponderated in favor of a contrary result that it can be said with a reasonable degree of certainty that the trial court erred in its conclusions. It was, undoubtedly, the duty of an appellate tribunal, where it is invested with the power ■of reviewing questions of fact, already passed upon by a court of •original jurisdiction, to examine the evidence and to determine the facts- for itself, and the rule forbidding a reversal where there is ■conflicting evidence, or some evidence to sustain the finding, does not apply to such a case. But when there is evidence on both sides, •and the case is balanced and the mind of the court has been called upon to weigh conflicting statements and inferences, and decide upon the credibility of opposing witnesses, much weight must be accorded to the special adaptation of the trial court to investigate .and determine such questions. Any other rule would nullify the peculiar advantages which that tribunal possesses, in observing the manner and appearance of the witnesses produced, and the various physical and mental peculiarities by which the mind of the professional observer determines the degree of credit which ought prudently to be attached to oral testimony.” The doctrine of the Bawd case was approved in Aldridge v. Aldridge (120 N. Y. 617), and near the close of the opinion in the latter case the court adverted to the rule that full effect should be given to the opportunity that the trial court “ had to hear the evidence and observe the manner of the witnesses.” The evidence upon which the referee was called upon to act, which came from the lips of the plaintiff, as well as from some other sources, indicates that the plaintiff was advanced in years, not familiar with business transactions or legal papers, and that her husband was not a first-class business man, and that when she had the interview with her son, which resulted in the conveyance which is now challenged, she entertained kindly, motherly relations to him, having confidence in him; that he was impecunious himself, having no property of any substantial value besides such as he by the transaction in question acquired from his mother; that she had other children who, if the conveyance was allowed to stand, would be deprived of the possibility of inheriting from her, children who were in needy circumstances, although they were on friendly relations with her, and that the effect of the papers executed was to divest the plaintiff, not only of her real estate, but of her personal property, gratuitously transferring to the possession of the defendant Charles some $0,500 worth of property; under such circumstances it is not in the province of this court to say that the finding of fact on the main issue is against the evidence, nor that it is wholly unsupported by the evidence furnished upon the hearing. It appears that as the papers were about consummated there was some suggestion made about keeping them secret. The deed was not recorded until after the plaintiff had discovered the fraud and begun to take measures to recover possession of her property again, and in one interview which the defendant Charles had with one of his brothers-he denied that he had a deed of the farm, putting forward the idea that it was only a lease; as his brother, George D., testifies, that in a conversation held with him in the winter of 1891, Charles said he had leased his mother’s farm. The foregoing views lead us to approve the main proposition of fact as found by the referee.

(2) When the plaintiff was giving her testimony she was asked : “ Q. What did you go to Monticello for % ” This was objected to and the objection was overruled and an exception was taken by the defendants. The answer was: “Went to draw writings; we were going to rent the farm. Ife sent for him before we got there; we had set a day and he knew we were coming on such a day to draw writings.” "We think no error was committed in receiving the answer. Nor do we think it was error to allow evidence to remain in the case stated by the plaintiff that she did not understand the writing to be a deed when it was read over to her, and that she did suppose it to be a lease. Upon an issue of fraud the circumstances, referred to by her were not improper. Criticism is made upon the-ruling of the referee, which allowed the evidence to stand as to the effect that she put all confidence in the world in him; I did not suppose he would take advantage of me.” The effect of her testimony already given, and the effect of the testimony given by her in the cross-examination, indicated that she had confidence in her son and that at the time she was not laboring under any supposition that he woiud take advantage of her. The allowance of those facts, under the circumstances, as the witness was situated, are not believed to be error which is prejudicial to the defendant.

The learned counsel for the appellant presented to the referee numerous requests to find matters of fact, many of which the referee approved. Some of the requests he refused to find and as to others he stated that he refused “ to find differently from what I have found.”' Many of the requests were on minor features of the evidence and some of them that were refused were based upon evidence which was conflicting. Several of the requests presented more than one proposition to the referee. It was said in David v. Leopold (87 N. Y. 620) that “ Where a request to find presents more than one proposition, a referee is not bound to analyze it and pass upon the several parts separately.” We think the exceptions to the refusals to find do not require us to disturb the conclusion reached by the referee. In the conclusions of law stated by the referee, he has provided for a reference and also has provided that the referee shall so state the account as to preserve the equities of the grantee, and the rule laid down guiding the reference is quite as favorable as the -defendant was entitled to have stated. (Baldwin v. Short, 28 N. Y. St. Nepr. 107.)

We have so far considered the appeal upon the merits, and if the appeal was properly before us we should affirm the judgment. It appears, however, that the appeal is from an interlocutory judgment, and that such an appeal was not authorized prior to the amendment of section 1349 of the Code by the Legislature of 1893. The appeal was taken prior to the time when sucli amendment was to take effect. Although, no question was raised by either party to the appeal on the argument as to its regularity, we doubt our jurisdiction to entertain the appeal. (Dorchester v. Dorchester, 121 N. Y. 156 ; Knowlton v. Atkins, 134 id. 322.) Ve conclude to dismiss the appeal, with costs of the appeal.

Martin and Merwin, JJ., concurred.

Appeal dismissed, with costs.


text:
    Charles F. Dougherty, Plaintiff, v. Trustees of the Village of Horseheads, Defendant.

      Trustees of a village-— their duty to keep its streets in repair — action to recover for injuries — motion to hmie the complaint made more definite and certain or for a MU of particulars- — review of a judgment of nonsuit.

    Under the provisions of sections 19, 31, 31 and 37 of chapter 486 of the Laws of 1855, it was the duty of the trustees of the village of Horseheads to keep the streets of the village in a reasonable condition of repair for the use of the public.
    In an action brought against a village to recover damages for injuries alleged to have been sustained by reason of the alleged negligence of the defendant-in failing to keep the streets of the village in a proper condition, if the defendant desires the complaint to contain a more accurate, definite and minute description of the place where the injuries were received, its remedy is by a motion to have the complaint made more definite and certain, or that a bill of particulars be rendered.
    Upon what facts it should be left to a jury to say -whether a plaintiff, who was thrown from his cutter by reason of its collision with a stone upon the street of a village, was guilty of contributory negligence, and whether such stone was an incumbrance on the street and such an obstruction thereof as to leave the street in an unsafe condition, and whether the trustees of such .village were guilty of negligence in suffering the stone to remain in its street, considered.
    Where a nonsuit has been granted, the plaintiff is entitled to the benefit of every fact that the jury could have found from the evidence, and to every legitimate inference that is warranted thereby.
    Motion by the plaintiff, Charles F. Dougherty, for a new trial on a case containing exceptions, ordered to he heard at the General Term in the first instance by an order made upon the dismissal of the complaint at the Chemung County Circuit on the 14th day of December, 1891.
    Plaintiff received injuries by the overturning of a cutter in which he was riding while passing from the hotel barn to the wagonway •of Main street in defendant’s village of Horselieads.

      Reynolds, Stamchfield & Collin, for the plaintiff.

      Dailey & Bentley, for the defendant.
   Hardin, P. J.:

Defendant’s charter was amended by chapter 486 of the Laws of 1855. (Laws of 1855, p. 875.) Section 19 of that act confers upon the board of trustees power to make such general ordinances, by-laws and regulations as they deem proper and expedient for the good government and health of the village, and to have the management •and control of the finances and of all property, real and personal, belonging to said corporation. Subdivision 5 of section 21 confers upon the trustees power to prevent the encumbering of the streets, ■crosswalks and sidewalks, and to compel every person to keep snow ■and dirt from and off the sidewalks in front of the premises owned •or occupied by such person.” In section 31 it is provided that The street commissioner shall have the general supervision of the •streets, alleys and highways and public grounds. He shall act under the direction of the trustees, who may at all times limit, restrain and regulate him in the performance of his duties and assign him such lawful duties in respect to such streets, highways, alleys and public grounds as they deem proper.” By section 37 the trustees “ are authorized and empowered to raise money by tax * * * to pay all contingent expenses of the corporation, and also to carry into effect the several powers, provisions and privileges granted by this act.” By section 44 the village is declared a separate road district, and it is provided “ The trustees shall have power to regulate, amend and construct cross and sidewalks, and to pave, plank, grade, flag, straighten, widen, discontinue, alter and clean the streets, highways, bridges, sidewalks, drains and sewers of said village, and to prevent the incumbering of the same vn a/ny ona/nner, <md to protect the same from encroachment and im/jury. * * * ”

"We think, under the provisions of the charter, the defendant was clothed with power to regulate its streets, sidewalks and the approaches thereto within the limits of the public streets of the village, and that it was charged with the duty of keeping the same in a reasonable condition for the use of the public. (Sherman v. The Village of Oneonta, 49 N. Y. St. Repr. 267, and cases cited in the opinion; Goff v. The Village of Little Falls, 47 id. 729; Stebbins v. The Village of Oneida, 23 id. 702; Pomfrey v. The Village of Saratoga Springs, 104 N. Y. 459 ; Nelson v. The Village of Canisteo, 100 id. 89.) Plaintiff.. in his complaint alleges that on the-7th day of January, 1887, upon the invitation of Gilmore, he was-riding in a cutter, to which was hitched a horse, along Main street of the village, and that “ while so passing upon said street the cutter struck and was driven, without the fault or negligence of plaintiff' or said Gilmore, against and upon a large stone or rock within said street, and was thereby overturned and broken ; this plaintiff and said Gilmore were thrown therefrom, and this plaintiff thereby and therefrom suffered and sustained serious, grievous bodily injuries,, whereby he was caused great bodily pain and mental anguish,” and the complaint further alleges “ That said large stone or rock was an illegal obstruction in said highway, and was dangerous and liable, if' not certain, to cause injury to persons passing upon said highway, in vehicles which strike against or pass upon it. That the street commissioner and the board of trustees and the other officers of said village well knew, before the said accident and the said injury to plaintiff, that such rock was within said street, and was an illegal and dangerous obstruction thereto, and the injuries to plaintiff and all their consequent results were caused by the negligence, inattention and carelessness of said commissioners and said board of trustees or of the said board of trustees and their failure to fulfill and perform their duties and obligations as such officers, and not to any extent or in any degree by the carelessness or negligence of said plaintiff or said Gilmore.” Criticism is mad© by the defendant upon the complaint. We think it sufficiently stated a cause of action, and that the language we used in Sherman v. The Village of Oneonta (supra) may be appropriately applied as an answer to the criticism of the defendant. In that case we said : “ If the defendant desired the complaint to contain a more accurate, definite and minute description of the place where the injuries were received, it should have sought its remedy by a motion to have the complaint made more definite and certain, or that a bill of .particulars be rendered. The defendant was not misled by the language of the complaint. The evidence that was received in respect to the location where the injuries took place was admissible. There is no available force in the criticism made of the complaint.” In the course of the decision delivered by the trial judge at the close of the evidence, he observed, correctly, we think, that There is no doubt that the municipality have the duties to keep the streets in repair for those passing along the streets.” It appeared by the evidence that the west line of Main street is ten feet west of the west line of the wagon or driveway, and adjacent to the south side of the driveway upon the street, and that it is one foot from the street line to the sidewalk, and that the sidewalk is some six feet, and there is a grass plot or lawn about three feet, and that in the lawn or grass plot is a row of trees extending southerly, and north of the most northerly tree was the place of the stone which caused the overturning of the cutter in which the plaintiff was riding. The stone was some sixteen inches across .east and west and twenty inches across north and south, and one foot through up and down ; and that at the time of the accident the stone was three feet and six or eight inches north of the tree. It appeared that the stone was placed in that position at the instance of the owner of the Platt House, by one Jacob Greatsinger, while he was acting for or in behalf of the street commissioner of the village. The avowed purpose of the stone was to protect the tree from being driven against by persons driving upon the street, or from the street to the barn. It also appeared by the evidence that upon the occasion of the injuries the stone was covered with snow, and was not readily seen, although on behalf of the defendant several witnesses testify that the snow was not entirely over the stone, and that it was visible. It also appeared that the north end of the stone was five or six inches south of the regular beaten track. "When the injuries were received the horse was upon a slow or jog trot, although some evidence was given tending to show greater speed. When the right runner of the cutter struck the stone the cutter tipped over, and the plaintiff struck his hip upon the snow of the beaten track, and Gilmore fell upon him, and he received quite extensive injuries, for which this action is brought. We think no error was committed by the trial judge in holding that the question of whether the plaintiff was free from contributory negligence or not, was a question for the jury. We are also of the opinion that it was a question of fact whether the stone was an incumbrance of the street, and such an obstruction thereof as to leave the street in an unsafe condition, and that it was for the jury to determine whether the defendant had been guilty of negligence in suffering the stone to remain in the condition in which it was, as disclosed by the evidence. Even if it be assumed that the stone was not placed there by the direction of the defendant, it had remained a sufficient length of time to arrest the attention or. notice of the defendant or its officers, and if it was an incumbrance and a dangerous object to be left in the street in the manner in which it was suffered to remain, it became the duty of the defendant to remove the incumbrance so as to leave the street in a reasonable condition for the use of the public. (Rehberg v. Mayor, 91 N. Y. 137; Kunz v. City of Troy, 104 id. 344; Langlois v. City of Cohoes, 58 Hun, 226.) It appears that the street in question was one extensively used by the people frequenting the village. Taking the evidence produced upon the trial most favorable to the plaintiff, we are of the opinion that the question whether the defendant was guilty of negligence or not was one which should have been submitted to the jury. It must be borne in mind that where a nonsuit has been granted the plaintiff is entitled to the benefit of every fact that the jury could have found from the evidence and to every legitimate inference that is warranted by the evidence. (McNally v. The Phoenix Ins. Co., 50 N. Y. St. Repr. 681.) We are of the opinion that there was more than a scintilla of evidence to uphold the plaintiff’s case, and, therefore, the cases of Hemmens v. Nelson (138 N. Y. 529), and Corning v. Troy Iron & Nail Factory (44 id. 577), and Dwight v. Germania Insurance Company (103 id. 341), and Hall v. Stevens (116 id. 210), are not applicable to the ease before us.

We are of the opinion that the nonsuit was improperly granted, and that a new trial should be ordered.

Martin and Merwin, JJ., concurred.

Motion for a new trial granted, with costs to abide the event.


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

text:
    Horace G. Prindle, Appellant, v. The Washington Life Insurance Company, Respondent, Impleaded, etc.

      Action against a corporation for services — liability under cm implied assumpsit upon a joint and not a several undertaking — a right to assess expenses does 'not present a condition precedent.

    Where persons, either officers in fact or agents, assume to act in behalf of a corporation, and employ a person to perform a service for the corporation, and such service is performed with the knowledge of the directors and principal officers of the corporation, and such corporation receives the benefit of such service without objection, the corporation is liable under an implied assumpsit for the value of such services.
    Where a person was employed as an attorney, by persons assuming to act as a committee for and on behalf of certain corporations, and services were rendered and received by such corporations, without any knowledge on the part of such attorney of certain resolutions adopted by the corporations limiting the power of the committee which had engaged him, his right of recovery will be held to-rest upon the joint and not the several undertaking of such corporations. (Merwin, J., dissenting.)
    Such resolutions contained the provision that the committee apportion the expense ratably among the companies and call in the necessary contributions in installments as they should be required.

      Held, that evidence of a refusal to make a proper assessment under the resolutions was not a condition precedent to the attorney’s recovery from such corporations. (Merwin, J., dissenting.)
    Appeal by tbe plaintiff, Horace G. Prindle, from a judgment of tbe Supreme Court in favor of tbe defendant, the Washington Life Insurance Company, entered in tbe office of tbe clerk of tbe county of Chenango on the 13th day of December, 1892, upon the report of a referee, and dismissing tbe plaintiff’s complaint on tbe merits as against the defendant, tbe Washington Life Insurance Company. .
    Tbe action was brought to recover for professional services alleged to have been rendered for tbe fourteen defendants mentioned in the pleadings. The summons and complaint were served upon tbe respondent, and tbe answer of tbe defendant, who is tbe respondent here, was the only answer served. The issue thus joined was referred and a trial bad, and a judgment ordered in favor of tbe respondent against the appellant, with costs.
    Tbe referee found, among other things :

      Till. That tbe said defendants, for tbe purpose of carrying out their objects effectively, appointed a committee, consisting of Timothy H. Brosnan, president of the defendant the United States Life Insurance Company; William A. Brewer, Jr., president of the said defendant the Washington Life Insurance Company; John E. Hegeman, secretary of the said defendant the Metropolitan Life Insurance Company; Jacob L. Halsey, vice-president of the said defendant the Manhattan Life Insurance Company, and E. B. ' Stoddard.
    IX. That after the appointment of such a committee the defendants, for the purpose of defining their powers and duties, made and passed the following resolutions:
    “ Resolved, that the expense to be necessarily made in support of the ground of defense which is common to all the insuring companies, be borne by all the companies in the proportion of the claims against them respectively, the expense for supporting special defenses being left to be borne by the companies respectively which raise such defenses.
    “ Resolved, that the present committee be continued, and that in addition to being charged with the care of the defense which is common to all, they audit the expense therefor incurred by them and to be incurred by them, apportioning the same ratably among the companies, and call in the necessary contributions in installments as the same shall be required.”
    X. That the plaintiff had no knowledge in fact of said resolutions.
    XI. That the plaintiff had knowledge of the persons constituting said committee.

      Horace O. Prindle, in person, and S. Hamford, for the appellant.

      Foster c& Thomson, for the respondent.
   Hardin, P. J.:

Defendant’s answer admits that the plaintiff is and was an attorney, residing and having an office in Norwich, Chenango county, and engaged in the practice of his profession, and that the defendants mentioned in the pleadings in this action are corporations doing a life insurance business. It also admits “that each of the said defendants had, prior to the month of November, 1878, issued a policy of insurance covering the life of one Walton Dwight, who died in the city of Binghamton, Broome county, in this State, on or about the 15th day of said month of November, 1878.” In the plaintiff’s complaint, it is alleged “that, after the death of said Dwight, the defendants combined to resist the enforcement of claims upon their said policies.” The complaint alleges that in April, 1883, the defendants “ retained and employed this plaintiff in his professional capacity to act as local counsel at Norwich aforesaid, the said county of Chenango being the county in which several suits on policies, in the defense of which said defendants were interested as aforesaid, were then pending.” The complaint then avers that the plaintiff, under said retainer, and prior to the month of March, 1881, rendered valuable professional services to said defendant in certain interlocutory proceedings before trial, and in aiding in the preparation for trial, and trial at Circuit * * * of one of the suits brought by the personal representatives of the said Walton Dwight, deceased, on one of said life policies, * * * being the first and only one of the said suits, for the defense of which the said defendants had entered into said combination as aforesaid, which was ever tried, and in proceedings subsequent to trial, such services necessarily occupying upwards of sixty days of plaintiff’s time, to the exclusion of his other professional business. That the reasonable value of such services was the sum of twelve hundred dollars. That said plaintiff also rendered other services during said period under said retainer in connection with other suits against said defendants .then pending.” It also avers that he paid, laid out and expended moneys upon request.

Among other things alleged in the answer is a statement that “ the insurance companies named as defendants in this action contributed together a fund to be used in payment for the obtaining of evidence, the payment of experts and for such other purposes as might be deemed desirable for their general and common interest, and appointed a committee consisting of Timothy H. Brosnan, who was at the time president of the United States Life Insurance Company, William A. Brewer, Jr., who was then president of the Washington Life Insurance Company, John R. Hegeman, who was then secretary of the Metropolitan Life Insurance Company, Jacob L. Halsey, wbo was then vice-president of the Manhattan Life Insurance Company, and E. B. Stoddard, to disburse the said money which should be paid by each; ” and then the answer contains an averment of a limited authority of the committee as to the expenditure of money. It also admits and alleges that when sued by the representatives of said Dwight, upon policies issued by it upon his life, this defendant, upon its own responsibility and directly through its own counsel, in August, 1883, wrote to the plaintiff to prepare papers and apply to the court for an order putting the trial of the said case against it over the term;” also “this defendant wrote to plaintiff to prepare papers and apply to the court for an order to show cause why a commission should not issue to Pennsylvania to take the testimony in said case against it of certain witnesses residing there.” The answer also alleges that “ for the trouble entailed upon the plaintiff by reason of such correspondence defendant is willing to ■pay full and reasonable compensation.”

The referee finds that the plaintiff was an attorney as alleged, and that the defendants are corporations substantially as alleged in the complaint, and that they had issued policies prior to November, 1878, substantially as alleged in the complaint; and that actions against each company on its policy were commenced on behalf of the personal representatives of said Dwight. The referee also finds “ That the said defendants, after the death of said Dwight, united in resisting the claims made upon said policies.” He also finds that a committee was appointed by the defendants for the purpose of carrying out their objects; and lie also finds “ That the plaintiff had no knowledge in fact of said resolutions,” to wit, the resolutions passed by the defendants at the time they raised the committee. The referee also finds “ That on May 24th and May 25th, 1883, plaintiff was present at a meeting in the city of New Yoi’k of the counsel of the various companies; ” and he further finds “ That at said meeting there were present Halsey Fisk, attorney for the Homoeopathic Company, Joseph Larocque, attorney for the Germania Company, James Thomson, attorney for the Washington Company, Daniel Magone and Timothy II. Bros-nan, president of the United States Company, and others, and the subject-matter of the said actions so brought against the defendants were discussed by and between those present, and the employment of plaintiff as local counsel at Norwich aforesaid was then and there talked over, and his opinion asked relative to the various defenses in said actions and the trial thereof, and plaintiff was at that time paid by said Brosnan the sum of $150 as a retainer fee as such counsel, and all services performed by plaintiff as such counsel were performed under such retainer.” The referee also finds “That the reasonable value 'of such services was the sum of twelve hundred dollars. That said plaintiff also rendered other services during said period, under said retainer, in connection with other suits against said defendants then pending; ” that in January, 1881, the plaintiff rendered a bill to Timothy H. Brosnan, chairman, etc., for the balance due for services in the Dwight insurance cases.

Plaintiff was sworn as a witness in his own behalf, and detailed the services performed by him at the instance of the defendants in and about the litigation; he stated the value of such services after having given the details thereof, and that he was requested to visit the city of New York, and that he attended a meeting held in the office of the defendant, the United States Life Insurance Company, in the month, of May, 1883; he says, “ There were present Mr. Magone; he acted as counsel for the various companies in this combination. Mr. Brosnan was there. He was the president of the United States Company. I remember Mr. Thomson being there as the representative of the Washington Life, the attorney for that company. I think Mr. Brewer was also there, William A. Brewer, Jr. Mr. Larocque was also there as the attorney and representative of the Germania Life Insurance Company. Halsey Fisk, the attorney for the Homoeopathic and Metropolitan companies was also there.” It appears that in that interview a general discussion took place in respect to the “ defenses set up and the evidence to be obtained to maintain them,” and generally as to the fact that the plaintiff was to act as “ local counsel; ” and the witness adds, “ The whole thing was talked over there. We consulted generally about the points involved, the proof that could be obtained and the probable result.” And the plaintiff produced some correspondence that took place between him and the counsel engaged in the defense, and gave an account of the circumstances attending the trial of the Germania case at the Chenango Circuit. He says: “ The tidal occupied thirty clays, and I was occupied and worked night and day up to twelve o’clock at night. Thomson was up here as attorney for the Washington Life till near the close of the trial. The committee hired the Marquis dwelling here and had their cooks from New York, and all the et cetera, and lived high, and I met them there every evening for consultation upon the case. I had conferences with Mr. Thomson. I looked up decisions here and took them over from my office to the Marquis house, books, etc. I might say here, while I think of it, that before the trial came off, not knowing exactly what I was to do on the trial, I examined all the questions of law and made a brief, so as to be ready in any emergency.” After this testimony was given the plaintiff was cross-examined at great length and his case was rested.. No motion was made for a nonsuit. The defendant called as a witness Mr. James Thomson, who gave his recollections as to the progress of the litigation, the action of the committee, the adoption of the resolutions referred to in the answer of the defendant, and at the close of his testimony the case was rested, no motion having been made for a nonsuit. Exceptions were taken to certain refusals of the referee to find and to the findings made, of fact, as well as of law. Apparently the referee has disposed of the case upon the rule applicable to an executory contract; that the defendants received the professional services of the plaintiff after they had made a common defense of all the actions brought against them, is made apparent by the evidence. It is also made apparent by the evidence that the facts and circumstances disclosed to the plaintiff, and known to him prior to performing the services, were such as to warrant him in the belief that the defendants desired his services as local counsel, and that that desire was communicated to him by persons who assumed to act in behalf of the defendants. That the defendants had knowledge of the services performed by the plaintiff in behalf of the position taken by the defendants against the right of the representatives of Walton Dwight to recover is quite apparent from the testimony delivered before the referee. It is also quite apparent that the plaintiff did not know of the special provisions relating to the committee that was raised by the defendants, and that the circumstances brought to his knowledge were sufficient to warrant him in the belief that the defendants had made an arrangement to defend any and all of the actions pending when his services were solicited. When the proceedings preliminary to the trial took place, when the trial took place, and in short when the plaintiff’s services were rendered, the defendants must have known that the plaintiff was acting in their behalf for the purpose of furthering their common purpose of making a defense to all the actions. Under such circumstances, it seems reasonable that the rule should be so construed as to give the plaintiff a right of action. (Hooker v. Eagle Bank of Rochester, 30 N. Y. 86.) This action, like Fister v. LaRue (15 Barb. 323), was brought upon an executed contract, and in that case it was said by Johnson, J.: “It is well settled, at least in this country, that where a person is employed for a corporation, by one assuming to act in its behalf, and goes on and renders the services according to the agreement, with the knowledge of its officers, and without notice that the contract is not recognized as valid and binding, such corporation will be held to have sanctioned and ratified the contract, and be compelled to pay for the services according to the agreement. Having availed itself of the services and received the benefits, it is bound in conscience to pay, and will not be heard to say that the original agreement was not made by a person legally authorized to contract. (Ang. & Ames on Corp. 216, 218, chap. 8, § 8.) Where the contract is still executory, and nothing has been done under it, and the action is to recover damages merely for non-performance, it is for the plaintiff to show a legal contract binding upon the corporation. But this is not that case. The services here have all been rendered in pursuance of the agreement, with the assent, or, at least, without notice to the plaintiff of the dissent of the other trustees, and it would be intolerable now to deprive her of her compensation. The law raises the same presumptions against colorations in such cases as against natural persons.”

In Steam Navigation Co. v. Weed (17 Barb. 378) it was held that, “ A party who has had the benefit of the contract cannot be permitted, in an action founded upon it, to question its validity.”

In Cunningham v. M. S. & F. C. R. R. Co. (63 Hun, 441) it is said: “A corporation may become bound by a contract, express or implied, under the same circumstances as an individual. To make a corporation liable it is not necessary to show an express resolution passed at a meeting of its directors. Where a party does work or furnishes materials to a corporation under a contract with one assuming to act as its agent, to the knowledge of its officers, without dissent on the part of the corporation, it will be held to have ratified the contract, and to be liable thereunder.5’ The proposition is supported by numerous authorities cited. When the interview took place in the city of New York with the plaintiff it was in the presence of a representative of the respondent here, and it comes with ill grace from it to insist that after his services were arranged for and the arrangement approved by its representative, that the services should not be paid for by the parties soliciting them. At that interview there were persons present who had authority from all the defendants to aid in the defense of all the actions that were commenced by the representatives of Dwight. As the referee has found, an arrangement had been made by all the defendants to make a defense of all of the actions, and it is apparent that counsel who represented all the defendants took part in the interview had with the plaintiff; and it is further apparent that when the trial took place, persons who represented all the defendants in this action were present, and all the defendants had knowledge of the services being performed, and performed by the plaintiff under the supposition that he had been employed in behalf of all the defendants, and that his services would inure to the benefit of all the defendants here, to wit, the associated fourteen companies which had agreed to make a common cause of a defense against all the claims made by the representatives of the Dwight estate. The facts indicate very clearly, as the referee has found, “that the plaintiff had no knowledge in fact of the resolutions ” which were adopted when the committee was appointed to further the defense. The referee, upon evidence which warranted the finding, states that plaintiff’s services so performed were “ done for all the codefendants.” Inasmuch as we are of the opinion that the plaintiff’s right of recovery rests upon an employment made by persons assuming to act for and on behalf of the defendants, and that the services were rendered and received by the defendants without any knowledge on the part of the plaintiff of the resolutions which had been adopted by the companies, his right of recovery is upon the joint undertaking of the defendants and not upon their several undertaking; therefore, the case of Ludlow v. McCrea (1 Wend. 228) is not applicable. Respondent relies largely upon Adriatic Fire Ins. Co. v. Treadwell (108 U. S. 364, 367). That ease is unlike the one before us. In that case it appeared that after the insurance companies had formed an agreement to make a defense “ the committee named in it employed the defendant in error on behalf of all the companies parties to it. He testified that the agreement was shown to him, and that he accepted the invitation to become the attorney of the companies. The employment was general, no specific terms being fixed, and it is not questioned that it was with full knowledge of the agreement between the companies, and according to the authority conferred by it wpon the committee.” That case was disposed of by the court “ on the ground that no joint liability has been proven.” While in the case before us we are disposed to rest the plaintiff’s right of recovery upon the general principle that where persons, either officers in fact or agents, assume to act in behalf of a corporation, employ a person to perform a service for the corporation, and it is performed with a knowledge of the directors and principal officers of the corporation, and such corporation receives the benefit of such service without objection, the corporation is hable under an implied assumpsit. (Hooker v. Eagle Bank of Rochester, 30 N. Y. 86.) We are not willing to assent, upon the findings made by the referee and the evidence found in the appeal book, to his conclusion of law, “ That evidence of refusal to make a proper assessment, under the resolutions, is a condition precedent to the plaintiff’s recovery from the Washington Life Insurance Company, or any other liability incurred by it under such resolution,” nor to his conclusion that the respondent “is entitled to judgment in this action dismissing plaintiff’s complaint, with costs.” The foregoing views lead us to order a new trial.

Martin, J., concurred.

Merwin, J.

(dissenting):

I am not prepared to concur in the opinion of the presiding justice. The retainer under which plaintiff claims was by the committee, and he is, I think, chargeable with notice of the extent of their powers. (Martin v. Farnsworth, 49 N. Y. 558.) He knew that the interest of the different companies in the litigation was not equal. If the respondent knew afterwards that plaintiff performed services for tbe common benefit, it bad a right to believe that he was doing it under such authority as the committee had a right to give, and under the arrangement for payment as provided for when the committee was appointed. That being so, the authorities as to implied ratification would not apply. The arrangement between the companies did not authorize a joint liability. (Adriatic Ins. Co. v. Treadwell, 108 U. S. 361.) The plaintiff had a right to be paid, but not on the basis of a joint liability. The respondent was not, I think, liable for the whole. I, therefore, dissent.

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