author: Boabdmajx, J.:

text:
    GEORGE S. WOOD, Plaintiff in Error, v. THE PEOPLE, Defendants in Error.

      Bill of exceptions — how and by whom settled—Indictment — motion to quash—• Perjury—commotion for — sustained when offense is mffiaientty assigned in any one count—Punishment for the crime—refused of the judge to charge thejwry as to.

    Plaintiff in error was convicted of perjury at a court of sessions, held on August 27th, 1872, and sentenced. On August 26,1873, a hill of exceptions was settled by the county judge and justices of sessions of the county^where the conviction was had, none of whom took part in the trial, or were, at the time thereof, members of the court. Held, that no bill of exceptions had been settled as required by law. The same court which tries a criminal must settle the bill of exceptions, and such settlement must take place before the final adjournment of the court, at which the trial is had.
    After pleading not guilty to the indictment, the plaintiff in error moved to quash the indictment; the motion was denied and an exception taken. Held, that the motion was addressed to the discretion of the court, and was not a proper subject of exception.

      The indictment alleged that the court was held at the town of Kingsbury, and that the perjury was committed at the village of Sandy Hill. Reid, that the indictment was sufficient,as it was alleged in each count that the court was held> and the perjury committed, in the county of Washington; that the precise locality is not matter of description, and need not be proved as alleged; held, further, that the courts take judicial cognizance of the statutes of the State, whereby counties, towns, etc., are created, and thus know that the village of Sandy Hill is in the town of Kingsbury.
    In an indictment for perjury, the time stated therein when the oath was administered, is not material, so it be before the finding of the indictment and within the statute of limitations.
    Where the offense is sufficiently assigned in any one count in the indictment, the remainder may be rejected as surplusage, and the conviction sustained.
    The judge refused to instruct the jury as to the punishment of the prisoner, if convicted. Held, that this was correct; the jury had nothing to do with the punishment, nor had the degree thereof any -possible right to influence their verdict.
    A writ of error brings before the court only the record and exceptions taken, and it is not competent for it to weigh the evidence, or pass upon the correctness of the verdict of the jury.
    Writ of error to review the conviction of the plaintiff in error, for perjury, at a Court of Sessions, held in and for the county of Washington.
    Plaintiff in error was convicted upon an indictment for perjury, at a Court of Sessions, held in and for the county of Washington, on the 27th day of August, 1872, before Hon. Charles S. Lester, county judge of Saratoga county, and Eli Skinner and William Hatton, justices of the peace of Washington county, designated, according to law, as members of the Co.urt of Sessions. Upon such conviction, plaintiff in error was sentenced to imprisonment in the State prison for five years. Afterward, and on the 26th of August, 1873, exceptions were settled by Hon. A. D. Wait, county judge of Washington county, and John B. Little and John Horton, justices of sessions of said county, none of whom took part in the trial of said indictment, or were members of said court when the same was tried. Hor does it appear that said court, held in August, 1873, was a continuance or adjourned term of the court held in August, 1872.
    Upon the trial, exceptions were taken to the rulings of the court, which, so far as necessary, are stated in the opinion. ■ The writ of error was granted on the 20th day of January, 1874, and was accompanied with a stay of proceedings, the plaintiff in error being, as is understood, on bail since his conviction.

      J. S. Landon and C. F. Doyle, for the plaintiff in error.

      R. 0. Betts, district attorney, md H. Smith, for the defendants in error.
   By the Court,

Boabdmajx, J.:

The bill of exceptions presented to us is not such as. the law requires. By the 2d Revised Statutes, 736, section 21, it is provided, that exceptions may be taken upon the trial of an indictment, by the defendant, to the decisions of the court, as in civil cases; but, by sections 23 and 24, such bill of exceptions shall not delay the execution of the judgment, unless a stay is indorsed upon such bill of exceptions after the same is settled and filed. In this case, no exceptions were settled, as required by law, by the court which tried the plaintiff in error, nor until a year after the trial. Three persons, who took no part in the trial, and were not members of the court where the trial was had, assumed to sign and settle the bill of exceptions. Such practice is wholly unwarrantable. The same court which tries a criminal must settle the bill of exceptions, and such settlement must take place before the final adjournment of the court, at which the trial is had. The fact that provision is made for such settlement, when the judge who tried the case is dead or gone out of office, indicates quite clearly that the judges who preside at the trial must settle the bill of exceptions, and that no other judges or officers can do so. It is self-evident, that such a rule is the only safe and prudent one.

If this conclusion be correct, there is no bill of exceptions in this case before this court, and its contents cannot be. examined, as a basis of action upon this writ. All that the writ has brought up, is the judgment record. Such questions, only, as arise upon the face of the record, can be reviewed. Nearly all the objections, upon which the plaintiff in error relies, are such that, if real, they will appear upon the record, and may, therefore, be reviewed. After pleading not guilty to the indictment, the plaintiff in error moved to quash it, for various reasons assigned, and an exception was taken to the denial of the motion. This exception cannot Avail, because such motion is addressed to the discretion of the court, and is not a proper subject of exception. The case is still stronger against the plaintiff in error, after arraignment and plea of not guilty. But that is. not of importance, since the same objections are presented by a motion in arrest of judgment, at the close of the case.

Let us examine the various questions presented, and see whether the indictment is sufficient to sustain the conviction. Because the court is alleged to have been held in the town of Kingsbury, and the perjury to have been committed in the village of Sandy Hill, it is claimed that the conviction cannot be maintained. It is sufficient, that each count in the indictment charges that the court was held, and the perjury committed, in the county of Washington. That is all that was essential to jurisdiction in this case. The precise locality in the county is not matter of description, and need not be proved as laid. The charge is transitory.

But courts take judicial cognizance of the statutes of the State, whereby counties, towns, cities and villages are created, and thus know that the village of Sandy Hill is in the town of Kingsbury.

Another objection is, that the oath was administered March ysecond and the perjury committed March third, and that the indictment is therein repugnant. The time stated in an indictment when the oath was administered, is not material, so it be before the finding of the indictment, and within the statute of limitations.. There are certain exceptions, where time is of the essence of the offense, but this is not one of them. The time so stated is immaterial and may be rejected.

Another objection is, that perjury is imperfectly assigned. A careful reading of this indictment, satisfies me that the assignment of perjury is full and complete in some of the counts. In the first count, it is alleged that the evidence, therein stated to have been given, was material to the issue being tried; it gives the testimony of plaintiff in error on former trial, and then, specifically, and in detail, charges that it was false. If, however/in some instances, such assignments should be found defective and insufficient, it would not answer the plaintiff in error’s purpose, so long as any one charge in the count is perfect upon the record. The remainder may be rejected as surplusage.

Whatever may be thought of the assignment of perjury in some of the counts, it is beyond doubt that the first count is good, under the above authorities; conceding that, a motion in arrest could not prevail, nor can a conviction be reversed. After a general verdict of guilty, as in this case, the conviction will be sustained, if there be one good count, though many others are defective.

It appears that, in 1869, Wood brought an action of slander against one Conant, alleging that Conant had charged him with killing a diseased cow, and selling diseased and unwholesome meat from said cow. Conant answered by general denial, and also justification. Upon the trial, Wood testified that the cow was never sick, to his knowledge, nor lame, nor had she any swelling, to his knowledge; that he had never told one George Chapin she had a swelling; that no part of the meat was cut off and thrown away; that the meat was not diseased; and that he ate a portion of said meat, etc., etc. All of this, and other evidence not here set forth, was, and is alleged to be, false, and for such alleged false swearing, this indictment was obtained. Upon a trial before a jury, Wood has been convicted. Notwithstanding it is believed the proceedings and evidence upon the trial are not properly before us for review, we will briefly allude to the objection raised in that respect. It is difficult to understand why all the testimony alleged to be false, was not material upon the issue above stated. Certainly, it all bore upon the possession, by Wood, of a diseased cow, his slaughtering her, his knowledge of her condition and the quality of the meat, and was, therefore, competent evidence to repel the justification. If Wood’s evidence was believed, in the action of slander, a justification of the words spoken, could not be sustained. Whatever evidence may have been given by Conant, tending to establish the truth of the words charged, it would be overcome by Wood’s testimony, if credited. It must be apparent from the nature of the issue, upon the face of the record, that the evidence was material. "

Another objection is the refusal of the court to instruct the jury, as to the punishment of Wood, if convicted. The refusal was correct. The jury had nothing to do with the punishment, nor had the degree of punishment any possible right to influence their verdict. Such information would have been simply mischievous in its effect upon jurors, by creating sympathy or prejudice, in no respect aiding them in rendering a true verdict upon the evidence.

In the view taken of Wood’s evidence, no error was committed in allowing Woodcock to testify to the killing of the cow, and to finding a sore upon her which he cut off and threw away. It was essential to Oonant to prove the cow, in Wood’s possession, diseased, slaughtered in that condition, and diseased portions of the flesh thrown away. ' All these were circumstances, essential to be proved in justification. It may well be that other and more important facts must be established, but these were links in the chain, and were competent.

The decision of the court, in the admission of Brigham’s evidence, as to the quality of the beef, was correct. The reason he gave for such decision is not excepted to, and is' not covered by an exception to the admission of the testimony. The remark of the judge was not, apparently, addressed to the jury, and was not the object of an exception.

The writ of error brings before this court only the record and exceptions taken on the trial. It is not competent for the court to weigh the evidence, or pass upon the correctness of the verdict of the jury; questions of fact cannot be reviewed by writ of error. It is not analogous to appeals in civil cases. The evidence is only of use, in determining- the value of the exceptions taken.

For the reasons assigned, we think no fatal error was committed upon the trial of this indictment, and that the conviction and judgment should, in all things, be affirmed.

The proceedings and judgment are remitted to the Court of Sessions of Washington county, for such further action as may be proper; and the plaintiff in error will appear at the next Court of Sessions, to be held in and for Washington county, and abide the order and judgment of said court.

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

Conviction and judgment affirmed.

       Birge v. The People, 5 Park. R., 9.

       Laws of 1872, chap. 56.

       People v. Eckford, 7 Cow., 535; 1 Colby, 266.

       People v. Walters, 5 Park., 661; 1 Whar. Crim. Law, §§ 519, 520, 524.

         Rex v. Woodward, 1 Moody C. C., 323; 1 Whar. Am. Crim. Law, §§ 601, 602; 2 Colby Crim. L., 131.

       Vanderwerker v. People, 5 Wend., 530; Bronson v. Gleason, 7 Barb., 475; People v. Breese, 7 Cow., 429.

       People v. Stocking, 50 Barb, 573; 2 Colby C. L., 129; 1 Whar. C. L., §§ 261, etc.

       Rex v. Hill, Rus. & Ry., 199; 2 Wharton Cr. Law, § 2260; People v. Haynes, 11 Wend., 564; reversed in Court of Errors, but not on this point.

       1 Salk., 384; Reg. v. Rhodes, 2 Ld. Ray., 886; Douglas, 703.

         Guenther v. People, 24 N. Y., 100.

       Wilson v. People, 4 Park., 633.

       People v. Thompson, 41 N. Y., 1.


source: Caselaw Access Project

author: Boaedmab", J.:

license: Public Domain

text:
    DE WITT C. GIBSON, Respondent, v. THE AMERICAN MERCHANTS’ UNION EXPRESS COMPANY, Appellant.

      Express company — Receipt—liability under — Loss — Negligence—proof of— “ G. O. B." .
    Plaintiff delivered to defendant, at Fort Plain, N. Y., February 20,1871, a box, marked “S. F. Dana, Malden, West Ya., O. O. D., $45,” and his son and clerk drew up a receipt therefor, from blank receipts left by defendant with plaintiff, which was signed by the defendant and returned to plaintiff. By the terms of the receipt, defendant undertook.to forward the box to the nearest point of destination reached by it, but was not to be liable for any loss, except as forwarder, nor for loss by fire, nor for any default or negligence of any company, to which the property might be delivered for transportation, off the route of defendant; and such company was to be regarded as ¡the agent of the consignor. The defendant transported the box to Columbus, Ohio, the nearest point on its route to West Virginia, and delivered it to the Adams Express Company, by which it was transported to Malden and tendered to the consignee, who refused to receive it and pay charges. Subsequently, and on the second of March, the office of the company, and with it this box, was burned; held, that the defendants were not liable. The ordinary character of the shipment was not affected by the words, C. O. D., and the contract thereby expressed, until the collection should, in fact, be made.
    After the tender and refusal of the consignee to accept the box, it was held by the company as a warehouseman, and the company could only be made liable by reason of its negligence, which cannot be presumed but must be proven; and as, in this case, there was no proof as to the cause of the fire, the defendant was not liable.

      Appeal from a judgment of the County Court of Montgomery county, affirming a judgment in favor of the plaintiff, in a Justice’s Court.
    On the 20th day of February, 1871, the plaintiff delivered to defendant, at Fort Plain, N. Y., a box containing a light double harness, worth forty-five dollars, marked, “ S. F. Dana, Malden, West Va., C. O. D. $45.” From blank receipts, left by defendant with plaintiff, his son and clerk drew up a receipt for this box, which was signed by defendant’s agent and returned to plaintiff. By the terms of that receipt, defendant undertook to forward the box to the nearest point of destination reached by defendant, but was not to be liable for any loss or damage, except as forwarder only, nor for loss by fire, nor for any default or negligence of any company, to which the property might he delivered for transportation, etc., off the route of defendant; nor was such other company to be deemed the defendant’s agent, but, on the contrary, it was to be taken as plaintiff’s agent, as to this property. The defendant took the box and transported it to Columbus, Ohio, the nearest point on its route to West Va.; and, at Columbus, on the 22d day of February, defendant delivered said box, in good order, to the Adams Express Company. By this last company, the box was transported to Malden, West Ya. When it reached Malden, does not appear. The evidence tends to show that the package was tendered to S. F. Dana, the consignee, who refused to receive or pay the charges and collection thereon. When this was, does not appear. Upon the 2d day of March, 1871, the box still being in the possession of the Adams Express Company," at Malden, the express office was burned, and, with it, this box and its contents. The cause of the fire does not appear. After the burning of the box, the plaintiff, at Fort Plain, demanded the amount to be collected by defendant or a return of the property. Upon a failure to’ do either, this action was brought, and plaintiff recovered forty-five dollars damages. The judgment of the justice was affirmed by the County Court, and an appeal is now taken to this court.

      J. Genter, for the appellant.
    The acceptance of the receipt-constituted a valid, special agreement between the parties. (Maghee v. Camden and Amboy Trans. Co., 45 N. Y., 514; Bissell v. N. Y.

      C. R. R. Co., 25 N. Y., 442; Meyer v. Harndens Ex. Co., 24 How., 29; Westcott v. Fargo, 6 Lans., 319; Van Santvoord v. St. John, 6 Hill, 157.) As to effect of the letters, C. O. D. (Am. Mer. Union Ex. Co. v. Schrier, 55 Ill., 140; Weed v. Barney, 45 N. Y., 344.) Negligence must be proved. (Bush v. Miller, 13 Barb., 481; Schmidt v. Blood, 9 Wend., 268 ; Edwards on Railroads, 285.)

      J. D. and F. F. Wendell, for the respondent.
    The acceptance of the receipt did not establish a special contract. (Railroad Co. v. Manufacturing Co., 16 Wallace, 318; 1 Redf. on Railroads, 302; Blossom v. Dodd, 43 N. Y., 264.) As to the effect of the mark, C. O. D. (Tooker v. Gormer, 2 Hilt., 71; Palmer v. Holland, 51 N. Y., 416; Reed v. U. S. Ex. Co., 48 N. Y., 462; Denning v. N. Y. C. R. R. Co., 13 Gray, 481; Whitney v. Merchants’ Union Ex. Co., 6 Am. R., 207.)
   Boaedmab", J.:

Upon the facts stated, it cannot be doubted that the plaintiff should be held in law to have known the contents of the receipt, made out by his clerk upon blanks for his daily use. Nor can it be doubted that a common carrier, in ordinary cases, would not be responsible, under such a receipt, for loss or damage to property, after its safe delivery to the next connecting carrier, according to the usual course of business.

The letters, O. O. D., and the contract thereby expressed, do not, in my judgment, change this shipment from one of an ordinary character, until the collection shall in fact have been made. The duty to transport is precisely the same; and so of a tender of delivery. If the consignee neglects or refuses to take the property and pay the money, the property remains in the carrier’s hands as a warehouseman, precisely as if no money besides express charges were to be collected. In either case, the carrier is responsible only for a loss caused by its negligence. If this be true, the defendant was not liable for loss, after delivery to the Adams Express Company, under the facts in the case."

But in this case, it may well be doubted if the defendant would have been liable, had its route run to Malden, West Va., and the loss happened, as appears by this evidence, in defendant’s own office at that point. It is not shown when the box arrived at Malden, or when it was tendered to the consignee and refused by him. After such refusal, it was the duty of the carrier to keep the property, as a warehouseman. But very soon thereafter, and before advice could have been obtained from the plaintiff, the office and box were burned. It may be claimed that the carrier was not bound to notify plaintiff, in the absence of contract or directions. If the carrier became a warehouseman, by the refusal of the consignee to accept, he could only be made liable for his negligence. Negligence cannot be presumed, but must be proven, after the proof of destruction by fire, and after tender, as in this case.

Mow, it seems plain that the express company became a warehouseman, and, as there is no proof that the fire was caused by its negligence, it could not justly be held responsible.

Upon both grounds, I think the judgment of the County Court, and of the Justice’s Court, should be reversed, with costs.

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

Judgment reversed, with costs.

       Reed v U. S. Express Co., 48 N. Y., 462.

       Weed v. Barney, 45 N. Y., 344.

       Weed v. Barney, 45 N. Y., 347, 348.

       Bush v. Miller, 13 Barb., 489; Schmidt v. Blood, 9 Wend., 268.


author: Miller, P. J.:

text:
    HARRIET BEAL, Appellant, v. JOHN C. MILLER, Respondent.

      Tenants in common—Menge/rt—Election.

    Ejectment, to- recover the equal, undivided one-half of certain real estate. May 1st, 1816, Vedder' conveyed a piece of land in Amsterdam, including the premises in question, to G-. W. Beal and Z. Cook, who executed to him a mortgage on the same premises, which he subsequently, and on the 10th of May, 1816, assigned to G-. W. Beal, Z. Cook and Sarah Beal, the mother of Q-. W. Beal and mother-in-law of Cook. Cook took possession of the premises. September 15th, 1827, said Cook and wife, with the knowledge of Q-. W. Beal, conveyed to Sarah Beal a portion of said land, including the premises in question, in consideration of $1,300; by deed, which was recorded September 28th, 1827. Sarah Beal died in January, 1828, leaving a last will and testament, duly executed, by which she devised to her son, W. H. Beal, “ a piece of land in the town of Amsterdam aforesaid, called the ‘wheat lot,’lately in possession of Zebulon Cook, and contains about six acres,” being the premises in question, and by a codicil thereto, she revoked this devise to her son, and gave the same estate, theretofore devised to him, to his daughter, Harriet Beal, the plaintiff herein. Harriet Beal, on May 12th, 1859, conveyed one undivided half part of the wheat lot to Marcellis and Winegar, who subsequently conveyed the same to the defendant. On the 28th of August, 1835, G-. W. Beal conveyed the wheat lot to David B. Corey, by quitclaim deed, which was duly recorded. David B. Corey’s title was subsequently acquired by the defendant. Held, (1.) That, by the assignment of the mortgage, the assignees thereof became tenants in common, each being entitled to the undivided one-third part of the same; that, as Z. Cook and G-.W. Beal owned the equity of redemption, two-thirds of the mortgage immediately merged in the fee, and only the one-third owned by Sarah Beal remained effectual. (2.) That, by the conveyance of Cook to Sarah Beal, she acquired title to the undivided-one-half part of the wheat lot; that one-half of her interest in the mortgage became merged, and she had a lien on the other half of the lot, for one-sixth of the amount of the mortgage only. (3.) That, by her will, Harriet Beal, the plaintiff, took only such title as the testatrix had; that, if she acquired any interest in the mortgage, the statute of limitations had run against it. (4.) That the plaintiff had no title to any portion of the lot.
    Sarah Beal, by her will, bequeathed to G-. W. Beal a writing desk, worth twenty-five dollars, which he accepted. Held, that this was not a case for the application of the doctrine of election, and that G-. W. Beal was not required to give up his interest in the wheat lot, as it did not appear that it was the intention of the testatrix that he should do so, and that, even if it was, it would only give the plaintiff a right to proceed against him in equity, and would not affect a liona fide purchaser of the property, without notice of the latent equity.
    Appeal from a judgment in favor of the defendant, entered upon the report of a referee.
    This action was brought to recover the one equal, undivided half part of a lot of land, situated in the village of Amsterdam, in the county of Montgomery. The case was tried before a referee. It appeared, upon the trial, that on the 1st day of May, 1816, one Harmanus Tedder was the owner of a lot of land, situated in the town above named, containing about thirty-four acres, of which the premises in controversy were a part, which he conveyed, by warranty deed, to George W. Beal and Zebulon Cook, and, on the same day, said Cook and Beal executed to said Tedder a mortgage on the premises, to secure the payment of the sum of $3,500. On the 10th of May, 1816, said Tedder, by an instrument indorsed upon said mortgage, in consideration of the sum above named, assigned the said mortgage deed, and granted and sold his interest in the premises described therein, to George W. Beal, Zebulon Cook and Sarah Beal. Cook took possession soon afterward, but the extent and duration of his possession are not shown. On the 15th day of September, 1827, said Cook and his wife, with the knowledge of George W. Beal, conveyed a portion of the premises described in the deed from Tedder, which included the premises in question, in consideration of $1,300, to Sarah . Beal, which deed was duly recorded on the 28th of September, 1827. Sarah Beal was the mother of George W. Beal, and mother-in-law of Cook, and died in January, 1828, having, prior to her decease, duly made her last will and testament and a codicil, which were duly proved after her decease ; that a portion of the premises, included in the Cook deed to her, was a wheat lot of six acres, which six acres or wheat lot were given or devised by the said Sarah Beal, by her said will and. the codicil thereto, in the words following: “ I give and devise to my' son, William Henry Beal, a piece of land in the town of Amsterdam aforesaid, near the village of Amsterdam, called the ‘ wheat lot ’ lately in the possession of Zebulon Cook, and contains about six acres, to have and to hold the same to him, the said William, his heirs and assigns, forever.” And the said Sarah, by a codicil, annulled and revoked the said devise to her said son William, giving and devising, by the said codicil, the same estate and interest, which would have been to her said son William by the will, to his daughter Harriet Beal, the plaintiff in this action. At the time the will and codicil were admitted to probate, the plaintiff in this action was an infant, aged seven years, then living with William H. Beal, her father, who resided at Schenectady, about fifteen miles from Amsterdam, and continued to reside with her father until his death, in 1871. On the 12th day of May, 1859, said plaintiff sold and conveyed, by deed, duly executed and delivered, to Jeremiah T. Marcellis and Reuben E. Winegar, one undivided one-half part or portion of the said premises, the wheat lot. The said deed was recorded in the clerk’s office of Montgomery county, on the 14th day of May, 1859, and the said Marcellis and Winegar in the month of June, 1859, aforesaid, went into the possession of the said premises under the deed from plaintiff. There was some evidence, tending to show that this plaintiff exercised acts of ownership until the deed was executed, in 1859, to Marcellis and Winegar, and that the grantees in the deed, or one of them, remained in possession until they transferred the premises, and the defendant acquired title to the same. There was a stone wall on three sides of^the lot, and the river on the other side, soon after the deed from Tedder, but the wall along the highway, as early as 1830, was down, so as to offer no protection, and from 1830 to 1865, there was no substantial inclosure. By the will of Sarah Beal, she bequeathed her portable writing desk, which was worth twenty-five dollars, to George W. Beal, which he accepted and retained, with full knowledge of the provisions of the will. On the 28th of August, 1835, George W. Beal executed a quitclaim deed of the wheat lot, with other lands, to David B. Corey, which was duly recorded, and afterward, on the 18th of January, 1836, said Beal and wife executed another quitclaim deed to the plaintiff, which was also recorded. Corey and wife conveyed to the blew York Central Railroad Company, and the title, through several intermediate conveyances, was transferred to the defendant. The referee found that the plaintiff had no title by documentary proof or adverse possession, and reported in favor of the defendant. The plaintiff duly excepted to the decision and findings of the referee. On the trial, the plaintiff objected to the declarations of William H. Beal, made at the time of the delivery of the deed from her to Marcellis and Winegar, which objection was overruled, and the plaintiff duly excepted.

      C. W. White, for the appellant.

      8. W. Jackson, for the respondent.
   Miller, P. J.:

The question presented upon this appeal is strictly one of legal title, and the plaintiff is bound to establish such title before she can maintain this action. The common source of title of both parties is the deed of Harmanus Tedder, in May, 1816, conveying certain premises to George W. Beal and Zebulon Cook, each of whom thus became seized in fee of an equal, undivided one-half thereof. The plaintiff claims title, First: By virtue of an instrument indorsed upon the mortgage, executed by Beal and Cook to Harmanus Tedder, dated May 1st, 1816, upon the premises conveyed on the same day by said Tedder to said Beal and Cook, to secure the .payment- of $3,500, which instrument grants and assigns the said mortgage to G-eorge W. Beal, Zebulon Cook, and to Sarah Beal, the mother of the plaintiff, from whom she claims to derive title to the premises, in the indenture of mortgage particularly described.

Second: TJnder a deed from Zebulon Cook and wife, dated September 15th, 1827, of a portion of the lot, including the premises in question, in consideration of. $1,500, to the plaintiff’s mother,1 Sarah Beal, which was duly recorded on the 28th of September, 1827. In this connection it is also claimed, that Sarah Beal was a purchaser for a valuable consideration, and without notice of the deed from Tedder to Cook and George W. Beal, and her own deed from Cook and wife, being on record before the deed of May 1st, 1816, had the effect to vest her with the legal title to two-thirds of the premises, under the recording act.

I. As to the instrument or assignment upon the back of the' mortgage, which constitutes the first muniment of title, I think that the assignees or grantees became tenants in common of the mortgage, each being entitled- to the one undivided one-third part of the same. As Zebulon Cook and George W. Beal, two of the assignees or grantees, were the owners of the equity of redemption, two-thirds of the mortgage became immediately merged in the fee, and it only remained effectual, and a lien, for the remaining one-third, which was transferred, to and owned by Sarah Beal. This one-third could only be enforced against Cook and George W. Beal, and, when Cook conveyed to Sarah Beal one-half of the one-third she previously held, became merged in the interest so com veyed, leaving only one-sixth of the amount which remained, a lien upon the undivided half of the land which belonged to George W. Beal. The deed from Cook to Sarah Beal, conveyed the title to the one undivided half of the premises, and she became the owner of the same in fee, as to that, with a claim for the one-sixth, as mortgagee, upon the remaining one-half. Sarah Beal’s devise of the wheat lot to the plaintiff, only gave her such title as was vested in Sarah at the time of her death, and no more.' If the plaintiff became entitled to the interest of Sarah Beal in the mortgage, by the devise to her, it was, I think, only such an interest as could be enforced by a foreclosure of the mortgage, when the question could be determined as to the extent of that interest or its validity, after it had remained unpaid for a period of time, sufficient to raise a presumption of payment. The mortgage itself, or so much of the same as wTas vested in Sarah Beal, did not constitute evidence of title which would authorize the mortgagee, or his assigns or representatives, to maintain an action of ejectment for the recovery of the possession of the mortgaged premises or any part thereof. There are other objections to upholding the title of the plaintiff upon any such basis. It had ceased to be a lien by the operation of the statute of limitations, as more than twenty years had expired •since a right of action had accrued on the same. And, as to David P. Corey and his assigns, it was invalid under the recording act, for the reason that Corey was a bona fide purchaser for value from George W. Beal, and his deed was duly recorded, while the mortgage was never put on record.

II. The deed from Zebulon Cook and wife, to Sarah Beal, conveyed an undivided half of the premises, which he had acquired by virtue of the conveyance from Yedder, and there is no evidence that Cook, at this time, had any other or different title from that which he had thus acquired. There is no evidence that he had ever acquired the title of George W. Beal, or that he ever held possession of the premises in opposition to Beal’s title. Cook was a tenant in common with Beal, and whatever possession he had, must be presumed to have been for the benefit of himself and his co-tenant. Every legal presumption is in favor of a possession in subordination to the title of the true owner, and, unless when possession is taken by one tenant in common, a clear and positive disclaimer and disavowal of the title of his co-tenant, and an assertion of an adverse right is made and brought to the knowledge of the co-tenant, there is no foundation laid for the operation of the statute of limitations. Such, clearly, was not the fact in the case at bar, and, by virtue of the deed in question, Sarah Beal only acquired a title to an equal, undivided one-half of the premises in dispute.

The recording of the deed from Cook to Sarah Beal, cannot, I think, affect the rights acquired by George W. Beal under the deed from Vedder to him, because, 1st. The deed from Cook only conveyed his interest in the premises, which was an undivided half, and in no way affected the remaining half which belonged to George W. Beal. Sarah Beal, therefore, was not a subsequent purchaser for a valuable consideration, within the provisions of the Revised Statutes, so far as George W. Beal’s interest was concerned. 2d. As the deed to George W. Beal was executed in 1816, the provisions of the Revised Statutes could not affect the recording of it. At the time when the deed was executed, the law did not require that it should be recorded, and hence the rule invoked has no application. It is further insisted that the defendant is estopped from claiming that Sarah Beal was not the owner of the whole of the premises, for the reason that the deed from Cook and wife to her, recites a deed from Harmanus Tedder and wife to Zehulon Cook and Sarah Beal. The recital in the deed referred to, is a statement after the description of the premises, as follows: “As the same is described in a deed executed to both parties by Harmanus Tedder and his wife.” This description may very properly he interpreted as referring to the instrument indorsed on the mortgage, as no other deed is introduced in evidence, and which included George W. Beal as well as the other two persons therein named. Assuming, however, that it did not, it can scarcely be claimed, I think, that the defendant is a party or privy, claiming solely under the deed from Harriet Beal to Marcellis and Winegar, of One-half of the premises, executed in 1859. It is true he claims for one-half under the last-mentioned deed, but he also claims the other half, under the conveyance by George W. Beal and wife, to David T. Corey, in 1835, and Corey’s subsequent conveyance of the premises to the Central Railroad Company, and the intermediate conveyances, by virtue of which he acquired title.

If a privy or party, he could only be bound to the' extent of his claim, and has a perfect right to maintain his title under another and a different source, to the one-half not embraced within the conveyance from Harriet Beal. It may also he remarked, that, inasmuch as the title, derived by the conveyance of Tedder to Cook and George W. Beal, dates anterior to the conveyance from Cook to Sarah Beal, the latter must he considered as a grant, subject to all rights which had previously been conveyed by Tedder, and cannot, in any way, affect the interest of George W. Beal, or the parties claiming under him. The plaintiff ’s counsel also claims that Georgé W. Beal, by his acceptance of a legacy bequeathed to him by Sarah Beal, lost all title which he had acquired under the deed of Tedder to him and Cook, in 1816, to the undivided half of the premises. The legacy bequeathed, was a writing desk, of trifling value, and it is said that the acceptance of this bequest, Avas a renunciation of any title or claim which George W. Beal had to the wheat lot, which, by the same will, was devised to the plaintiff. The plaintiff seeks to apply a familiar rule in equity, called the doctrine of election, by which, one, who accepts a benefit under a deed or will, must adopt the whole contents of the instrument, conforming to all its provisions, and renouncing all rights inconsistent with it. And, if a testator has affected to dispose of property, not his own, and has given a benefit to the person to whom that property belongs, the legatee or devisee, accepting the benefit so given to him, must make good the testator’s attempted disposition. If he insists upon retaining his own property, which the testator has attempted to give to another, equity will appropriate the gift, for the purpose of making satisfaction out of it, to the persons whom he has disappointed by the assertion of those rights. It must be clear, beyond any reasonable doubt, that he has intentionally assumed to dispose of the property of the beneficiary, who is required, on that account, to give up his own gift. There is considerable difficulty in the application of this rule to the case at bar. It is by no means clear that the testatrix intended, by the devise to the plaintiff, to dispose of more than her interest in the property. Every presumption is in an opposite direction, with no facts or surrounding circumstances .to rebut such presumption. This rule is held not to be applicable, where the testator has some present interest in the property disposed of by him, although it is not entirely his own. In such a case, unless the intention to dispose of the whole estate, including the interest of third persons, is clearly manifest, he will be presumed to have intended to dispose only of that interest in the property, which he might lawfully dispose of. This principle is applicable to cases where a legacy is given to the wife, and not expressed to be in lieu of dower, and it is held that she is not put to her election. It is utterly improbable, and by no means inferable, upon any rational theory, that the testatrix intended to appropriate the property, and an entire one-half interest of her;son, George W. Beal, and bequeath, in return for the same, the inadequate and small legacy named in the will. This is also a case, I think, where the expressions employed, are of such a character as will admit of being restricted to an interest belonging to, and disposable by, the testatrix, and, therefore, will not be held to apply to property over which she had no disposing power, wdthin the principle decided in Havens v. Sackett (supra).

Even if the doctrine contended for, is applicable in cases where the intention is plain and clear, it is only a rule in equity, and, as the law abhors forfeitures, should not be held to apply in an action at law against an entire stranger and a bona fide purchaser for a valuable consideration.

While courts of equity may carry out and enforce the intention of partie s, and do exact justice between them, and may compel one who has accepted a bequest or devise under a will, to renounce all benefits inconsistent with other provisions, in which other parties have an interest, I am unable to discover how a court of law can thus defeat a title. It is held that a devise by one who is not a legal owner, cannot transfer the legal title to the property, nor can it operate by estoppel, against the legal owner, who is also a beneficiary under the will. The current of authority upon the question, which has been much discussed, whether the principle, governing cases of election under a will, is forfeiture or compensation, especially those of a recent date, is strongly and decidedly in favor of the principle of compensation; and it is said by Mr. Justice Stoby, that the fair result of the modern .leading decisions, is, that in such a case, there is no absolute forfeiture. The right of the plaintiff, therefore, to apply the rale in question if the facts authorized it, is only capable of being enforced in an equitable action against George W. Beal, and his grantees who have notice of such equity. Corey, being a bona fide purchaser from George W. Beal,without any notice that the plaintiff had any latent equity, has a superior equity, I am inclined to think, to that of the plaintiff. The role in equity is, that, as between two parties having equal equities, the prior equity must prevail; but if the party having the subsequent equity, clothes himself with the legal title before he has notice of the prior equity, such legal title must prevail. It is, therefore, difficult to see how, even in an equitable action, the equitable right of the plaintiff, if any exists, could be enforced against Corey and his grantees.

The counsel for the plaintiff relies upon the case of Padbury v. Clark, as an authority decisive of the question discussed. The case cited, is by no means analogous to the one at bar. The former was a bill in equity, and charged that one of the devisees had elected, and was bound to elect under the will. The testator was entitled, in that case, to a fee in an undivided moiety in two houses, and to another undivided moiety in a leasehold house, and, by his will, devised all my freehold messuage or tenements,” etc., referring to the two houses only, thus assuming that he was the owner of the whole, and not the one-half the houses; and, in another clause, devised all that my moiety or half part of the whole,” etc., in the leasehold messuage,” etc., to the defendant.

It was held that the words, first used, were a gift of the entirety, and raised a question of election, as against the party entitled to the other moiety who took' beneficially under the will; and that this construction was corroborated by the fact of the testator’s having used apt words, in disposing of his interest in the leasehold. The devisee would thus have received some compensation in return for the estate, which would have been surrendered by an election to take under the will. The Lord Chancellor decided that the defendant had not elected, but, as the rents were received by the trustee of the defendant or her father, for her usé, and she had elected to take against the will, she was bound to make good to the disappointed party, the value of the property intended for her. The decision in the case last cited, was based upon the principle of compensation, and a note at the close of the case, lays down the rule, that the doctrine of election proceeds upon the ground of compensation and not of forfeiture, citing numerous authorities to sustain this principle. There is not a reported case in the books, which I have discovered, that maintains the doctrine, that the principle contended for, can be invoked in an action against an entire stranger, to defeat a legal title acquired from one who held a valid conveyance of the fee, and had parted with the same to a purchaser. The plaintiff has shown no such prior possession, as against the defendant, which entitles her to maintain this action, and, as she was only entitled to an equal undivided half of the property, which, on the 12th day of May, 1859, she conveyed to Marcellis and Winegar, has proved no title whatever to the premises in question. As the plaintiff proved no legal title, and must recover upon the strength of her own title, and not on the defects in the title of her adversary, it is not necessary to examine and consider the character of the defendant’s title. I think there was no error in the admission of evidence, and even if the declarations of William Beal were objectionable, that they could not affect the result of the case. The decision of the referee was right, and the judgment entered thereon must be affirmed, with costs.

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

Judgment affirmed, with costs.

       2 R. S., 312, § 57.

       1 R. L., 372, § 2.

       1 R. S., 756, § 1.

       Varick v. Briggs, 6 Paige, 323 ; 22 Wend., 543.

       1 R. L. of 1813, 370, § 4.

       Jarman on Wills, 385; Havens v. Sackett, 15 N. Y., 370.

       15 N. Y., 373.

       2 Story Eq. Jur., § 1089.

       Fuller v. Yates, 8 Paige, 325; Church v. Bull, 2 Den., 430.

       Gretton v. Haward, 1 Swanst., 425, cited in 2d Story Eq. Juris., § 1080, note.

       2 Story Eq. J., § 1085; 1 Jarman on Wills, Perkins’ ed., 375, 376; Willard’s Eq. Juris., 545, 546.

       Newton v. McLean, 41 Barb., 286.

       48 Eng. Ch., 2 McNaghten and Gorden, 298.


author: Bookes, J.:

text:
    JOHN J. BATES and another, Plaintiffs, v. DANIEL J. COSTER, Defendant.

      Statute of frauds — Sale—when void,.

    Defendant being desirous of purchasing a stallion colt, owned by the plaintiffs, agreed that, if they would have him. altered and keep him until he got well, he would give them $1,000 for him. The plaintiffs caused the colt to be altered, and, after his recovery, tendered him to defendant, who refused to receive him. Held, that the contract, being oral, was within the statute of frauds and void; that it was a contract of sale, and not for work and labor to be performed.
    When the thing bargained for is not in me at the time of the contract—could not then be delivered and accepted—but is to be afterwards manufactured or constructed, the contract is held to be one for work and labor, but, where the subject of the contract exists at the time in sólido, but something is agreed to be done to it, to put it in condition for use, or to make it marketable, the contract is held to be one of sale, and void within the statute. To this rule there are perhaps some exceptions.
    The case of Mead v. Case (33 Barb., 202) doubted.
    Exceptions ordered to be heard in the first instance at the General Term.
    The plaintiffs were the owners of a male colt, which the defendant proposed to purchase. After some conversation between the parties in regard to the appearance, value and price of the animal, the defendant said, according to the testimony of Baird, one of the plaintiffs, “ if you will have him altered and keep him until he gets well, I will give you $1,000; ” and that Baird, with whom the conversation was had, replied, that he would “take it and have him altered to-morrow.” According to another witness, the defendant said, “ if you will castrate him, when he is well I will give you $1,000 for him;” and that Baird replied, “I will do it.” The plaintiff caused the colt to be immediately castrated, and when well, offered him to the defendant, who refused to accept him. Thereupon this action was brought. On the trial, the plaintiffs were nonsuited, on the ground that the contract, being oral, was within the statute of frauds and void.
    An exception was interposed to this ruling, and the ease was ordered to be heard in the first instance at General Term.

      Samuel S. Ediok, for the plaintiffs,
    cited Mead v. Case (33 Barb., 202); Courtright v. Stewart (19 id., 457); Parker v. Schenck (28 id., 38); Downs v. Ross (23 Wend., 275), dissenting opinion of Cowen, J.; Bennett v. Hull (10 Johns., 364); Crookshank v. Burrell (18 id., 58); Parsons v. Loucks (48 N. Y., 17); Ferren v. O'Hara (62 Barb., 527).

      John O. Robinson, for the defendant,
    cited Shindler v. Houston (1 N. Y., 261); Caulkins v. Hellman, (47 id., 449).
   Bookes, J.:

The contract was not in writing; no part of the purchase-price was paid; nor was the property delivered.

If, therefore, the contract was one of sale, it was within the statute of frauds and void. This position is not denied; but it is insisted on the part of the plaintiffs, that the contract was for work and labor. When the thing bargained for is not m esse at -the time of the contract—could not then be delivered or accepted—but is to be afterwards constructed or manufactured, the contract is held to be one for work and labor; as for a wagon, thereafter to be constructed, and the like. This class of cases does not fall within the statute; and an action may be maintained for the contract-price, counting on the agreement as a contract for work, labor and materials. Again, when the subject of the contract exists at the time in solido, but something is agreed to be done to it, to put it in condition for use, or to make it marketable, the contract is held to be one of sale, and void within the statute. Yet the rule thus laid down has perhaps some exceptions. The case of Mead v. Case, is a notable instance.' The contract was for a marble monument, then complete in its general form, but was to be polished, lettered, finished and set up, at and for the price of $200. This was held to -be a contract for work, labor and materials, and binding. The court held that the agreement was one by which the •party was employed to make or manufacture a monument, not then in existence. In this view, undoubtedly, the case was well decided. But the decision was by a divided court, and is of doubtful authority on the facts proved. It seems in conflict with several more recent cases. In Fitzsimmons v. Woodruff, the contract was for a marble mantle, then selected by the party, which was to be set up, with certain alterations, in his house situated in another town, at and for the price of $80. This was held to be a contract of sale, and void under the statute. In Cooke v. Millard, the contract was for lumber to be dressed and delivered, and it was held to be a contract of sale, and void. In Smith v. N. Y. C. R. R. Co., it was held that a contract for the sale and delivery of a quantity of wood, at the time in standing trees, was not a contract for work and labor, so as to take the case out of the statute; and Woodruff, J., likened that case to Downs v. Ross, where the contract was for wheat, thereafter to be threshed and delivered, and to Garbutt v. Watson, where the contract was with a miller, for flour, thereafter to be ground. It is said in many of the cases when this question has been considered, that the true test for determining whether the contract was one of sale or for work and labor, is to inquire whether the work to be performed, in order to prepare the property for delivery, was to be done for the vendor or the vendee. If for the former, the contract is one of sale, and void under the statute. According to the above cases, it must be quite obvious, I think, that the contract here under consideration, was one of sale, not one for work and labor. It was a simple contract for the sale of the colt, to be delivered at a future time, gelded and well, at the price of $1,000. The animal was present before the contracting parties, and was the precise property agreed to be delivered. True, an. operation was to be performed of great hazard, involving however little labor and trifling expense.- The plaintiffs assumed the expense and risk, for they were to deliver the colt gelded and well. It was the animal that was contracted for, not the incident of castration. The labor, expense and risk of the operation, were for the plaintiffs. The animal was the subject of the purchase and sale, to be gelded before delivery. The language of Bayley, J., in Smith v. Surman, well applies here; he says, the vendor, so long as he was felling it [the timber] and preparing it for delivery, was doing work for himself and not for the defendant ; ” and he adds, “ it was a contract for the future sale of the timber when it should be in a fit state for delivery.” There was not, certainly, any idea of manufacture involved in the agreement in this case; no idea of compensation for work and labor, as such. In no fair and just sense, can this contract be deemed one for work and labor; it was manifestly a contract of sale for the price of $1,000; and, not being in writing, was void by the statute of frauds.

The case was properly disposed of at the trial, and the defendant is entitled to judgment.

Miller, P. J., and Boardman, J., concurred.

Judgment ordered for the defendant, with costs.

       2 R. S., 136, § 3.

       18 John., 58; 1 Strange, 506; 21 Pick., 205; 8 Cow., 215; 1 Met., 283; 28 Barb., 38; 51 id., 532, 576; 26 id., 138; 48 N. Y., 17; 19 Barb., 455; 4 Rob., 216; 26 Barb., 138; 28 id., 38; 62 id., 517.

         33 Barb., 202.

       1 N. Y. Sup. Ct. R., 3.

       5 Lansing, 243.

       4 Keyes, 180.

       23 Wend., 270.

       5 Barn. & Ald., 613.

       9 Barn. & Cress., 561.


text:
    ESTHER GREGORY and another, Respondents, v. BENJAMIN BROOKS, Appellant.

      Partnership—Fa/rm—agreement to work on shares.'

    An agreement was entered into, by which defendant was to work a farm of the plaintiffs on shares, which, after providing for the division of the crops, contained the following clause: “All the profits arising from the working and farming of said farm, to be divided equally between the parties to this agreement. All losses and gains upon said farm for one year from the 1st of March, 1870, is to be divided equally between the said parties.”' Held, that a partnership was not thereby created between the parties.
    At the trial, the following question was put to defendant: “During the whole term was there a profit made or loss sustained in the general result? state all the facts.” The referee refused to allow him to answer it. Held,, that this was proper, as the question was too general; and that as the first part of it was clearly objectionable, that was sufficient to authorize its rejection as an entire question.
    Defendant offered to prove the cost of picking, curing and baling the hops. Held, that the evidence was properly rejected, for the reason that by the terms of the contract, defendant was bound to perform this work, and because no such claim was set up in the answer.
    There were two dwelling-houses upon the farm, one of which, before the making of the agreement, and during the continuance thereof, was occupied by the plaintiffs and the other by the defendant. The defendant offered to prove the value of the use of the dwelling occupied by the plaintiffs. Held, that as the agreement contained nothing in regard thereto, and as both parties had acted on the assumption that each was entitled to the possession of the house occupied by himself, that the evidence was properly rejected.
    Appeal from a judgment, in favor of the plaintiffs, entered upon the report of a referee.
    This action was brought to recover the sum of $264.05, alleged, to be due the plaintiff's, under a written agreement to work plaintiffs’ farm upon shares, for one year, the plaintiffs claiming that the proceeds of certain crops received by defendant, had not been divided. By the agreement, the plaintiff's let and leased to the defendant their farm, for the term of one year. The plaintiffs were to furnish eleven cows, one horse, three yearlings, fourteen sheep, and all farming utensils on the farm, excepting the mowing machine. The defendant was to furnish one horse, one cow; to keep the farming tools in repair upon the farm; to pay interest on the cash value of five cows, at their appraised value; to pay for the use of mowing machin'e, owned by the plaintiffs, at a price to be agreed upon, and to leave the farm in as good condition at the expiration of the lease as it was when taken possession of, and also as many acres of ploughed ground as there were on the 1st of March, 1870. The lease also contained the following covenant: “ And it is further stipulated and agreed between the said parties, that the profits of ten cows are to be equally divided between the said parties to this agreement. That the threshed grain is to be divided when threshed, the potatoes when dug, the corn when husked ; all grain crops, roots and vegetables to be divided by measure. All the profits, arising from the working and farming of said farm, to be divided equally between the parties to this agreement. All losses and all gains upon said farm, for one year from the 1st of March, 1870, are to be divided equally between said parties.” The answer, after reciting the agreement, among other things, alleged : That no settlement or accounting has been had between the parties, and that all matters between them, relative to the occupancy of the farm under this agreement, including gains made and losses sustained, remain open, unsettled and unliquidated ; and also, that in the management of said farm during the term, a net loss of $150 was sustained by the defendant. In the prayer for relief, he asks that an accounting may be had, and that the plaintiffs may be adjudged to bear their share of the loss. The answer also set up a counter-claim, which was denied by the reply. The action was referred, by consent, to Hezekiah Sturges, as sole referee to hear and determine, and was tried before him June 13th, 1872.
    After the plaintiffs had put the agreement in evidence, the defendant’s counsel asked the referee to dismiss the complaint and order judgment for the defendant, upon the grounds that it appeared from the contract in evidence that a partnership between the parties was created by the terms of said contract; that no accounting had been had, etc., and that an action at law could not be maintained; that plaintiffs’ only remedy was an equitable action for an accounting. The referee denied the motion, to which ruling the defendant’s counsel excepted.
    The referee gave a report in favor of the plaintiffs, for $166.74, with costs.
    Exceptions to the report were taken by the defendant’s counsel.
    Upon the trial, objections were made and exceptions taken to the decisions of the referee, in regard to evidence, which are referred to in the opinion. A judgment was entered upon the referee’s report, and the defendant appealed.

      I. Bu/rditt and Jenks da Matterson, for the appellant,
    insisted that by the agreement, the parties became partners. (Champion v. Bostwick, 18 Wend., 183; Collyer on Part., 12, 13, Perkins’ ed.; Musier v. Trumpbour, 5 Wend., 274; 16 Johns., 34; Parsons on Part., 36; Allen v. Davis, 13 Ark. R., 28.)

      J. E. Dewey and G. S. Gorham, for the respondent,
    cited, as to the question of partnership, 1 Parsons on Cont., 60; Putnam v. Wise (1 Hill, 234); Tanner v. Hills (44 Barb., 428); Chitty on Cont. (232, 233); Smith v. Watson (2 B. & C., 401); Tripp v. Riley (15 Barb., 333); Dinehart v. Wilson (15 Barb., 595); Chase v. Barrett (4 Paige, 148).
   Miller, P. J.:

Although the language employed in the concluding portion of the article of agreement between the parties, of itself and. alone, might be interpreted as establishing the relationship of a partnership between them, yet, looking at the intention of the parties, as expressed in the agreement, and as may be inferred from the surrounding circumstances connected with the transaction, I am of the opinion that no partnership was established. It is apparent, from the contract, that the agreement was in the nature of a contract for the working of a farm on shares, or for the cropping of the same by the defendant, and the delivery of a portion of the avails to the plan tiffs for the use of the farm. This does not, as I understand, constitute a copartnership, in the ordinary acceptation of that term. Even if a partnership was made out, inasmuch as the parties were allowed to prove the claims which they had against each other, and a full accounting was had between them, of all the transactions arising under the contract, I am at a loss to see how that question can be of any importance in disposing of the case.

It is true that the action was to recover at law, and the complaint did not contain the usual averments, demanding an account, which would be employed in a bill in equity for an accounting between copartners, but the complaint and answer together presented the claims of each of the parties, and the whole subject-matter of the controversy was fully investigated. Under the liberal rules as to amendments, established by the Code of Procedure, even if the complaint was insufficient, I think it may be considered as amended to meet the facts proved, if any such amendment is required to answer the ends of justice. From the observations made, it follows, that there was no error on the part of the referee in any of his rulings as to the copartnership, and if there was they are not of a character to demand a reversal of the judgment.

Some objections are urged as to the admission and rejection of evidence offered, which require consideration.

1. It is said the referee erred in rejecting the offer to prove the loss sustained on the horse bought by the defendant of the plaintiffs, and used under the contract, and that the same was unsound, and represented to be free from disease. It is difficult to see how the plaintiffs could be made responsible for a deterioration in value, occasioned, as the offer showed, by disease contracted while engaged in labor upon the farm. The offer to show a breach of warranty, was not pertinent to the issues made, and if it had been, it is a sufficient answer to say that no such defense was interposed by the defendant.

2: There was, I think, no error in excluding the question put to the defendant, as follows: “ During the whole term, was there a profit made or loss sustained in the general result ? state all the facts.” The" question was objected to, as too general, and as incompetent, and it is plain that it was liable to the first objection, at least. The first part of it was clearly objectionable, which was sufficient to reject it as an entire question. The latter part also embraced a scope of inquiry, which it was the province of the referee to restrict within proper limits. The inquiry should have been made more specific, so as to show the relevancy of the question put. It may also be remarked that the general offer to show the expense of working the farm, was not relevant under the agreement, and did not affect the right of the plaintiffs to demand an accounting for their share of the produce, which the defendant had appropriated and used. The question was what the defendant had received and converted, or refused to divide, and not what profit he had made, or loss he had sustained.

3. The offer to prove the cost of picking, curing and baling the hops, was properly overruled, for the reason that, by the terms of the contract, the defendant was bound to perform this work, and because no such claim was set up in the defendant’s answer.

4. The offer to show by items, that the cost, in cash paid out, of raising the hops and preparing them for market, exceeded the amount received, could in no view have been competent, as this was a part of the contract which the defendant had agreed to perform.

5. The proof of the value of the use of the cow on the farm, used by the plaintiffs, was properly overruled, as the lease provided that the plaintiffs were to put eleven cows on the farm, and the defendant one, and the profits of the ten were to be divided, thus providing for the use of one cow for each family.

6. I am inclined to think that there was no error in the refusal of the referee to allow proof by the defendant, of the value of the use of the dwelling-house and out-buildings, occupied by the plaintiffs during the term. Nothing is contained in the agreement in regard to the dwelling-houses; and the two dwelling-houses on the farm were occupied, the one by the plaintiffs, who continued to occupy as before the contract, and who never gave up possession to the defendant, and the other, by the defendant, who never claimed possession of the other dwelling-house, each family cultivating one-half of the garden. There was no implied promise to pay rent, by the plaintiffs, and no relation of tenant to the defendant, created by the agreement, and both parties acted upon the assumption that each was entitled to the possession of the buildings occupied by them, respectively, and acquiesced in this practical construction of the contract.

7. The proof of milking the cows by plaintiffs for defendant, was also competent, and, as plaintiffs were partners in the farm, was a proper charge against the defendant.

There was no error upon the trial, and the judgment must be affirmed, with costs.

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

Judgment affirmed, with costs.

       1 Parsons, p. 60.


text:
    AMBROSE FOWLER, Respondent, v. ELSIE TRULL, Appellant.

      Mamed woman—Unauthorized acts of agent—ratification of—Neglect to read paper hefoi'e signing it—effect of paper not avoided hy.

    The husband of defendant, who was the owner of a separate estate, purchased certain merchandise and took a bill of sale of the same in her name, without her knowledge and without authority. At the time of the sale, the defendant gave her own note, secured by mortgages assigned by her, for a portion of the purchase-money, and a chattel mortgage upon the property purchased, to secure the remainder thereof, and subsequently executed a second chattel mortgage upon the same property to a thud person. Held, that by these acts, she ratified the unauthorized acts of her husband, and that she was liable for the price of the goods so purchased by him.
    The defendant testified that she did not know what she was signing, when she signed the chattel mortgages; held, that as it appeared from the evidence that she signed them voluntarily, without misrepresentation or fraud, that their effect could not be avoided by her negligence or omission to read them.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee. The action was brought to recover a balance of $943.74 with interest, for merchandise sold and delivered to the defendant’s husband, as was claimed, as the agent of the defendant, who was a married woman. The negotiations were conducted by the husband with the plaintiff. The sum of $200 was paid in cash, and the balance secured by the note of the defendant, a mortgage being assigned by her as collateral security thereto, and by a chattel mortgage given by her on the goods purchased, containing the usual covenant to pay the amount secured. The testimony material, as well as the rulings on the trial, are stated in the opinion. The referee reported in favor of the plaintiff, and the defendant appealed. The case was submitted upon printed points.

      John F. Porter, for the appellant.

      Henry A. Merritt, for the respondent.
   Miller, P. J.:

It appears from the evidence in this case, that the defendant’s husband made the purchase of the property and took a bill of sale, of the same, in the name of his wife, the defendant, without any authority from her, and without her knowledge; that she never took possession of the property, and that the business was carried on in his name afterward, and not for the benefit of the’wife’s separate estate. If there were no other facts connected with the transaction, there would be no question that the defendant was not liable. But it appears that the defendant gave her own note, and assigned mortgages as collateral security for a portion of the purchase-money, which note was afterward paid, and- that she also executed a chattel mortgage on the property sold, to secure the balance which remained unpaid upon the sale.- It is also proved that subsequently, and on the 15th day of November, 1870, she executed another chattel mortgage to one Crawford, upon the same property. By these acts, she assumed ownership and control over the property sold, and, I think, ratified what her husband had done on her behalf at the sale, claiming, as he did, according to the plaintiff’s testimony, to act as her agent. It is true, that the defendant testifies that her husband had no authority; that she did not know what she was signing, when she executed the chattel mortgages; and that the one given to Crawford, was without consideration. This, however, does not relieve the defendant, and, inasmuch as she voluntarily signed these papers, in the absence of misrepresentation or fraud, with ample opportunity for information as to their contents, the effect cannot be avoided upon the ground of negligence, or omission to read, or to avail herself of such information. There is no sufficient ground for claiming that the defendant’s signature was procured by fraud, and the mortgages as executed, are far more than presumptive evidence, and, I think, must be regarded as a ratification of the acts of her husband, even if he acted without authority originally, and a ratification of at least a part of an unauthorized transaction of an agent, or of one who assumes to act as such, which amounts to a confirmation of the whole', and binds the principal. As no fraud was shown, and, as the defendant, by writing, adopted the representations made by her husband when the contract of sale was made, she is estopped from denying her liability. If the views expressed are correct, then proof of the husband’s declaration to the plaintiff, at the time of the sale, was proper, as the agency of the husband was ratified by the subsequent acts of the defendant, and there was no error, either in receiving or in refusing to strike out, this testimony.

The’judgment was right and must be affirmed, with costs.

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

Judgment affirmed, with costs.

       Breese v. U. S. Telegraph Co., 48 N. Y., 132.

       Story on Agency, 283.

         Farmers’ L. & T. Co. v. Walworth, 1 N. Y., 433.


author: Bockes, J.:

text:
    PATRICK ORGAN and another, Respondents, v. NEIL STEWART, Appellant.

      Compromise—when sustained— Conditional delvoefry—Matute of frauds.

    Defendant being the owner of three lots of wool, the plaintiffs entered into an agreement with him for the purchase thereof, in pursuance of which, two lots were delivered, and payment therefor was demanded by the defendant, and refused by the plaintiffs, who claimed that the third lot was included in the agreement,which was denied by the defendant. Subsequently, an agreement was entered into by the parties, embracing the third lot of wool, which was to be handled and delivered by the defendant, at Troy, at the original contract price, in pursuance of which, the plaintiffs paid the defendant $18,357.60, the price of the wool already delivered, as part of the purchase-price of the whole of the wool. The defendant having refused to deliver the third lot of wool, this action was brought by the plaintiffs to recover damages therefor. Held, that the second agreement was valid as a compromise of doubtful and conflicting claims, and that, by the payment of the $18,357.60, as part of the purchase-price of the whole of the wool, the contract was taken out of the statute of frauds.
    Appeal from a judgment, in favor of the plaintiffs, entered upon the report of a referee.
    The plaintiffs were wool dealers, residing in Troy; the defendant, a farmer, residing in York, Livingston county. In January, 1871, the plaintiff, Organ, went to Livingston county to buy wool. The defendant had two lots of wool at his residence, and a third lot at Fowlerville, about three miles from his residence. Negotiations were entered into between the parties, which resulted in the parol sale of the two lots of wool at defendant’s residence, and the conditional sale of the Fowlerville lot, if the parties could agree upon the manner in which it should be shrunk. The two lots of wool were subsequently delivered to the plaintiffs, but a dispute having arisen as to the shrinkage of the Fowlerville lot, the defendant refused to let them have the wool stored there, and claimed that it was not included in the sale; the plaintiffs, claiming that it had been and was included in the sale, and that it was to be shrunk by them and sold by the defendant at their shrinkage, demanded its delivery, and this being refused, they refused to pay for the wool already delivered. Subsequently an agreement was entered into, by which the Fowlerville wool was to be delivered by the defendant at the store of one Ranken, in Troy, and sorted and shrunk by the said Ranken’s assorters, and delivered to the plaintiffs, who were to accept the same at the shrinkage as made by them, at the price just agreed upon. The plaintiffs thereupon paid to the defendant $18,357.60, the price of the wool already delivered, as part of the purchase-price of the whole of the wool.
    . Subsequently, Ranken refused, at the request of the defendant, to receive the wool, and the defendant having refused to deliver it to the plaintiffs, this action was brought.
    The answer denied the contract, and set up as a counter-claim, a balance due upon wool sold.

      Samuel Hand, for the appellant.
    The second agreement was void for want of consideration. (Converse v. Kellogg, 7 Barb., 590 ; Crosby v. Wood, 2 Seld., 369; Hunt v. Bloomer, 5 Duer, 202; Van Allen v. Jones, 10 Bosw., 369; Gibson v. Renne, 19 Wend., 389; Bridgman v. Dean, 7 Exch., 199). Nor could it be sustained as a compromise. (Morey v. Town of Newfane, 8 Barb., 645; Bunge v. Koop, 48 N. Y., 225; Thomas v. McDaniel, 14 Johns., 185.)

      Irving Browne, for the respondents.
    The second agreement was simply a modification of the original contract, and need not be in writing. (Goss v. Lord Nugent, 5 Barn. & Adol., 65 ; Stead v. Dawber, 10 A. & E., 57; Cuff v. Penn, 1 M. & S., 21; Blanchard v. Trim, 38 N. Y., 227 ; Boutwell v. O'Keefe, 32 Barb., 434; McKnight v. Dunlop, 5 N. Y., 537; Allis v. Read, 45 N. Y., 142.) The defendant is estopped from denying that the payment was made on account of the three lots of wool. (Dezell v. Odell, 3 Hill, 215; Gregg v. Wells, 11 Ad. & El., 90; Lowry v. Tew, 3 Barb. Ch., 413; Wetmore v. White, 2 Cai. Cases, 87; Cox v. Cox, 5 Rich. S. C. Eq., 365; Ryan v. Dox, 34 N. Y., 311.)
   Bockes, J.:

At the time the parties met at Troy, serious matters of difference existed between them. The plaintiffs claimed that the original contract of sale embraced the Eowlerville wool, and they insisted upon its delivery, and refused to pay for the wool, already delivered, unless their claim was acceded to, and the agreement performed on the part of the defendant, according to its terms, as they asserted the contract to be. On the other hand, the defendant insisted that the contract did not embrace this lot of wool, and claimed pay for the wool delivered. Under this condition of affairs, the parties entered into a new, or substituted agreement, embracing the Eowlerville wool, which was to be handled ” and delivered at Troy; all at the original contract price of forty-five cents per pound; and the plaintiffs were then to pay for the two lots already delivered. Thereupon, the plaintiff paid the defendant $18,357.60, the price of the wool already delivered, which payment, as the referee finds, was made upon the new or substituted contract, as part of the purchase-price of the whole of the wool.” The defendant then refused to deliver the Fowlerville wool, and the action is brought to recover damages therefor.

The contract was not in writing, and it is claimed, on the part of the defendant, that it was void by the statute of frauds. This position is based on the hypothesis that the original contract of sale did not embrace the Fowlerville wool; and that the payment made to the defendant was in satisfaction of the othei wool already delivered; thus leaving the contract for the Fowler ville wool to rest in parol, with no part of the property delivered, and without payment of any part of the purchase-money. This view -of the case is, I think, unsound. It is at least ques tionable whether the defendant should not be held to be estopped from asserting or claiming any advantage from the former or original agreement, inasmuch as he accepted the plaintiffs’ money on the new or substituted agreement, and in part payment of the entire purchase-price agreed to be paid for all the wool, by that contract agreed to be delivered. But be that-as it may, there were substantial matters of difference between the parties, at the time the new agreement was made, susceptible of being compromised, and proper to be adjusted and settled by them. There was a question whether the original contract did or did not include the Fowlerville wool. The plaintiff insisted that it did; and refused payment for any of the property until the defendant made delivery of that lot according to the terms of the purchase, as he claimed the contract to' be. The Fowlerville wool was certainly considered in their first negotiation, for the parties commenced to “ handle ” it, with a view to its delivery, as the plaintiffs claimed, pursuant to the original contract of sale, when a disagreement arose in regard to the handling” of it, and delivery was refused. The defendant, on the other hand, denied all obligation to deliver this lot of wool; insisted that it was not embraced within the contract of sale; and demanded payment for what had been delivered. There is nothing in the case showing that these claims by the parties, respectively, were not made in good faith, and under the full belief by each that the other was in the wrong in regard to the matters of disagreement. Their assertions and claims were not put forward, evi-. dently, without any ground to support them, as a ruse or fraud. Indeed, they respectively vindicated their views and claims by their own testimony on the trial of this case; and the fact that it was then decided that one was in error, does not show that the compromise was without ground of support. At the time of the agreement at Troy, the claims of the respective parties, as to the terms of the original contract of sale, • were, to say the least of them, doubtful, and it could only be determined which was right, by actual trial, and then could only be decided on conflicting evidence. A compromise of a doubtful claim will be upheld, and when an action is brought upon such agreement of compromise, it is no defense to show that the claim was not a valid one. In the last case cited, Cowen, J., says : In such cases it matters not on which side the right ultimately turns out to be. The court will not look behind the compromise.” In another case, it was said that any matter that may be litigated, may be settled. There are numerous decisions to the same effect as the above. Now, it must not be understood that a groundless claim, put forward without any show of right, a mere pretense, urged as a ruse or fraud, can be deemed a doubtful claim. There must be a real and substantial matter of dispute and controversy. Such was this case, and only by a judicial examination and a decision on»a conflict of evidence, could the claims of the respective parties be determined. But this is not all of the case, for it appears, on the face of the record, that the defendant also had a claim against the plaintiffs for damages, growing out of the original contract of sale, which, of course, was covered and extinguished by the compromise effected by the new agreement. This claim is set forth in his verified answer herein. Besides, if it be true, as the defendant claimed, and still claims, that there was no ground for the pretense on the part of the plaintiffs, that the Fowlerville wool was embraced in the original contract of sale, and that he was entitled to demand, and have payment for the wool actually delivered; then and in that case he had not, in fact, parted with his title to the wool delivered, and he might, then, at Troy, have reclaimed his property, on refusal by plaintiffs to pay, as they had agreed, on delivery. According to the proof in this case, he had waived nothing, and was not barred the right of reclamation by the delivery, under the expectation of payment, according to the contract, which called for payment on delivery. He lost no time in seeking payment. If the wool was delivered on the faith of the promise to pay on delivery, and with the expectation that the promise would be fulfilled, the fact that the plaintiffs had immediately run it off to Troy, would not prevent the defendant from obtaining reclamation of it, if payment was refused. In Leven v. Smith, the goods having been sold, to be paid for on delivery, Jewett, J., saysPayment and delivery were to have been simultataneous. Ho credit was given, and there is no evidence that the delivery to the defendant was intended to be absolute, or that the condition of payment was waived; and the mere handing over of the goods under the expectation of immediate payment, did not constitute an absolute delivery. The defendant, after such delivery, held the goods in trust for the plaintiffs until payment was made or waived.” The defendant, therefore, had not lost his right to the property, and could have reclaimed it at the time of entering into the new contract of sale, in case he was right in his position that the original agreement did not embrace the Fowlerville wool. This right was .barred by the new contract, and his acceptance of the sum of $18,357.60 thereon. How it is quite apparent that the new contract of sale wras brought about by mutual concessions, and this constitutes the very essence of compromise. All points of difference and conflicting claims, including right of property, were adjusted and settled by the new contract, in pursuance of which, a large amount of money was paid by the plaintiffs and accepted by the defendant. In effect, the agreement at Troy, and the action of the parties under it, amounted to a new contract of sale of the three lots of wool, with delivery of two lots, and payment down of the principal part of the purchase-price. The agreement, therefore, became, and was, valid and binding on the parties.

The breach by the defendant is well found, and the referee, in so far as is made to appear, committed no error in awarding damages.

Boardman J., concurred.

Judgment affirmed, with costs.

       Crans v. Hunter, 28 N. Y., 389; Russell v. Cook, 3 Hill, 504.

         1 Denio, 571.

         See also Fleeman v. McKean, 25 Barb., 474; Hays v. Currie, 3 Sandf. Ch., 638; Van Neste v. Conover, 8 Barb., 509 ; Smith v. Lynes, 5 N. Y., 41; Hammett v. Linneman, 48 id., 399.


text:
    CHRISTOPHER MATZE, Plaintiff, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Defendant.

      Railroad Company— Trespasser upon lands of—duty of company toward.

    The plaintiff, while crossing defendant’s track, in the evening, at a point where a street was to be, but had not yet been laid out, but where people were in the habit of crossing and recrossing, was struck by one of defendant’s engines and injured. Held, that he was guilty of contributory negligence in going upon defendant’s track, and that he could not recover.
    The court charged that, even if the public had no right to use the land of the defendant, at the place where the plaintiff was injured, yet, if people were in the habit of crossing and recrossing there, that- the company was bound to use care and caution in running at that point. Held, that this was error; that no right could be acquired by the public in such a manner, without evidence of notice to the company and subsequent acquiescence by it.
    Even if there was any evidence from which a license might be inferred, such license created no legal right and imposed no duty upon the defendant, except the general duty, which every man owes to others, to do them no intentional wrong or injury.
    Motion for a new trial on exceptions, ordered to be heard at the General Term in the first instance.
    The action was brought to recover damages for personal injuries sustained by the plaintiffj by reason of the negligence of the defendant. It was tried before one of the justices of this court and a jury, at the Albany Circuit, in June, 1873. The facts are stated in the opinion.
    At the-close of the plaintiff’s testimony, the defendant’s counsel moved for a nonsuit, on the following grounds:

      First. No negligence has been shown on part of defendant.

      Second. The evidence shows that the plaintiff’s injury was caused, or contributed to, by his own negligence.

      Third. That the plaintiff was improperly on the track of the defendant; that he was not using it for the purpose of a crossing, hut was using it for his own convenience, and without the consent or permission of defendant, and cannot, therefore, maintain this action.
    At the close of the whole case, the motion for nonsuit was renewed upon the grounds stated before, and upon the further ground that it appeared affirmatively, that, at the time of this accident, the city had done nothing to throw the street open to the public, and had not graded it, and it was not in a condition to be used as a street, and that' the city had not, at that time, become entitled to cross the lands of the defendant. The judge denied the motion, and the defendant’s counsel duly excepted.
    The court, among other things, charged, that “if persons were passing and repassing there, going to Dedrick’s and to the Observatory, and to the Tivoli Hollow, then it is undoubtedly true that the defendant should exercise care, as plaintiff claims; ” to which the defendant excepted.
    The defendant’s counsel asked the court to charge that the place where plaintiff was injured, was not a highway, and the court so charged.
    Defendant’s counsel asked the court to charge that the public had no right to use the land of the defendant, at the place where plaintiff was injured. The court said: As an abstract proposition, you are right; but if they viere in the habit of crossing cmd recross-i/ng upon that tcrach, they were bound to use ca/re cmd caution in running at that point.

    Defendant’s counsel excepted to the qualification.
    Defendant’s counsel asked the court to charge that the plaintiff had no .right to be upon defendant’s track, at the place where he was injured. The court said: That is true, with the qualification I have already stated. Defendant’s counsel excepted to the refusal and qualification.
    Defendant’s counsel requested the court to charge, that the defendant owed no duty to plaintiff, except to do him no intentional wrong or injury, under the evidence, and the court so charged.
    The jury found a verdict, in favor of the plaintiff, for $1,000, and the court ordered that the bill of exceptions to be made, be first heard at General Term.

      Matthew Hale, for the defendant.

      Henry Smith, for the plaintiff.
   Miller, P. J.:

The plaintiff was injured while crossing the track of the defendant’s railroad, within the corporation limits of the city of Albany. The plaintiff was a mechanic, and upon returning home from his work, on the evening of the day upon which the accident occurred, proceeded down some steps to the railroad track of defendant, walked along on the east side of the track, upon a sidewalk, and then, because it was bad, took the middle of the east track, some fifty or sixty feet toward Albany, until he came to a malt-house; then crossed over to the west track, where two tracks came near together, and to about the middle of what was claimed to be a street, where, after looking to see if trains were approaching, he turned to look toward Schenectady, when an engine came along, caught him on the left arm, by the part of the machine at the side, knocked him down across the track, when the wheel ran over his left leg and cut it off. At the place where the plaintiff was injured, proceedings had been taken to lay out a street; awards had been made to the owners of the land, and all but the defendant had been paid. There was proof to show that the alleged street was being graded, and that the teams working on it passed through. It appeared, however, that the city had not done any work in opening or grading the street, or in taking possession of the railroad over which it was located, but there was evidence that people had been in the habit of passing and repassing on foot, to and from the Observatory, and to Tivoli Hollow and Dedrick’s, by a footpath. I think the court erred in refusing the motion for a nonsuit. It is apparent that there was no highway or street laid out where the accident occurred. This was very properly, I think, assumed by the judge in his charge, as the case is entirely destitute of any evidence showing that such was the fact.

The question then arises, whether the use of the defendant’s land, for passing and repassing in the manner stated, was of such a character as to give the plaintiff and other parties, a right which imposed upon the defendant the duty of exercising care and caution towards strangers, who chose to trespass upon defendant’s land? I am not aware of any legal principle, upon which any such right can be upheld. The defendant had an exclusive right to the use of its track at the place where the plaintiff was injured. The plaintiff was there without any authority whatever, and was, therefore, guilty of negligence in being on the track at the time, which negligence contributed to the injury, and should have been a ground for nonsuit.

The fact that other persons were in the practice of passing at the place named, did not, of itself, confer any right upon the plaintiff, or impose any additional duty upon the defendant, and the court was clearly wrong in charging to the contrary, in effect. N o right of the public can be acquired in such a manner; at least, without evidence of notice, and acquiescence afterward. If such a theory could be permitted to prevail, railroad corporations might be subjected to serious liabilities, without their knowledge or consent, by the action of individuals, assuming to establish rights which are entirely unauthorized. I do not understand that they owe any duty, even, to the owner of a private right of way, through which they pass, which calls upon them to exercise care in the running of their trains; much less should it be imposed near a populous city, where trespassers expose themselves to injury without license. They are not bound to look out for those, who, without a particle of right, intrude upon their tracks. Such an act is unlawful and not to be expected, and it matters not whether the population be large or small, the rule of law is unswerving and cannot be changed to meet the exigencies of varying circumstances, which may attend unlawful trespassers upon their property. It is enough, in this case, to defeat plaintiff’s action, that the plaintiff was on defendant’s track without license or permission, and with no proof to show that he was invited, or that any of the defendant’s officers or employes had knowledge that it was appropriated to any such use. The principle stated is fully upheld in Phil. & R. R. R. Co. v. Hummell.

Even if there was any evidence from which a license might be inferred, and the plaintiff was not a trespasser, such license created no legal right and imposed no duty upon the defendant, except the general duty which every man owes to others, to do them no intentional wrong or injury. The com’t charged in accordance with this proposition, which of itself, I think, authorized a nonsuit.

The court was in error, in the refusal to charge the various requests, made by the defendant’s counsel, which it did not charge, and for these ■ errors, as well as the refusal to nonsuit, a new trial must be granted, with costs to abide the event.

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

Mew trial granted, with costs to abide the event.

       44 Penn., 375-379, 380. See also Bush v. Brainard, 1 Cow., 78.

       Nicholson v. Erie Railway Co., 41 N. Y., 530.