author: CORLETT, J. :

text:
    MARGARET Z. WINTERS, as Executrix, etc., Appellant, v. CHAUNCEY JUDD and Another, Respondents.

      Bond of indemnity to a sheriff — when it does not cover the case of a sale of property exempt from execution.

    A bond of indemnity to a sheriff, reciting that, “whereas, certain goods and chattels that appear to belong to the said Sally Eddy are claimed by Francis Larrabee and others in the execution aforesaid,” was conditioned that the obligor would “well and truly save, keep and bear harmless and indemnify the said George M. Winters, sheriff, and all and every person and persons aiding and assisting him in the premises, of and from all harm, let, trouble, damage, costs, suits, actions, judgments and executions that shall, or may at any time, arise, come or be brought against him, them, or any of them, as well for the levying and making sale, under and by virtue of such execution, of all or any goods and chattels which he or they shall or may judge to belong to the said Francis Larrabee and others, as well as in entering any shop, store, building or other premises for the taking of any such goods and chattels.”

      Held, that this bond did not cover a liability incurred by the sheriff because of his having sold, under the execution referred to, property which was by law exempt from execution.

      Appeal by the plaintiff from a judgment of the Supreme Court, 'entered in the office of the clerk of the county of Cattaraugus on the 24th day of April, 1890, upon the report of a referee.
    The action was brought to recover the amount of a judgment which had been entered against the sheriff of Cattaraugus county for selling property of a judgment-debtor, which was exempt from sale under execution.

      Frank Rumsey, for the appellant.

      J. Q. Record, for the respondent.
   CORLETT, J. :

On the 9th day of December, 1878, an execution was issued in favor of one Henry W. Eddy against Sally Eddy to collect a judgment for $1,590.50, in pursuance of which a levy was made by direction of the judgment-creditor. The property levied upon had been previously attached by the judgment-creditor. The defendant in the judgment claimed, both at the time the property was attached and levy made, that certain articles of property covered by the levy, to wit, a team of horses and a melodeon, were exempt from levy and sale. Francis Larrabee and Stephen Laing claimed liens upon the property by virtue of chattel mortgages. The sheriff, before he would sell, required a bond of indemnity, which was executed. The following is a copy:

“ Know all men by these presents that we, Henry W. Eddy, as principal, and Chauncey W. Judd and Wallace Ward, as sureties, of
New York, are held and firmly bound unto George L. Winters, sheriff of the county of Cattaraugus, in the sum of three thousand dollars, lawful money of the United States, to be paid to the said George L. Winters, or to his certain attorney, executors, administrators or assigns; for which payment, well and truly to be made, we bind ourselves, and each of our heirs, executors and administrators, jointly and severally, firmly by these presents.
“ Sealed with our seals, dated the--day of December, one thousand eight hundred and seventy-eight.
“ Whereas, the above bounden Henry W. Eddy, in the Supreme Court of the State of New York, did obtain judgment against Sally Eddy for the sum of $1,590.40, damages and costs, whereupon execution has been issued, directed and delivered to the said George L. Winters, commanding him that, of the goods and chattels of the said Sally Eddy, he should cause to be made the damages and costs aforesaid; and whereas certain goods and chattels that appear to belong to the said Sally Eddy ai-e claimed by Francis Larrabee and ■others in the execution aforesaid. Now, therefore, the condition of this obligation is such that, if the above-bounden Henry W. Eddy shall well and truly save, keep and bear harmless and indemnify the said George L. Winters, sheriff, and all and every person and persons aiding and assisting him in the premises, of and from all harm, let, trouble, damage, costs, suits, actions, judgments and executions that shall or may at any time arise, come or be brought against him, them or any of them, as well for the levying and making sale, under and by virtue of such execution, of all or any goods and chattels which he or they shall or may judge to belong to the said Francis Larrabee and others, as well as in entering any shop, store, building or other premises for the taking of any such goods and chattels, then this obligation to be void, else to remain in full force and virtue.
Sealed and delivered in presence of : .
“ HENRY W. EDDY. [n. s.]
“OIIAUNCEY JUDD. [l. s.]
“ WALLACE WARD. [l. s.] ”

After that, the sheriff sold the property levied on. Then Sally Eddy brought an action for the conversion of the team and melodeon, and recovered a judgment against the sheriff on the ground that the property was exempt, which he paid.

In February, 1885, an action was commenced by the sheriff on the bond to recover the amount of such payment. He died and the plaintiff was substituted in his place. Issue was joined; the action was referred; a trial was had, and the referee made a report dismissing the complaint. Judgment was entered upon the report, and the plaintiff appealed to this court. The referee wrote an opinion which appears in the case.

The central question on the trial was whether the bond could be construed as covering any liability of the sheriff for selling the property because it was exempt. It will be noticed that the recital in the bond, so far as material, is, “ and, whereas, certain goods and chattels that appear to belong to the said Sally Eddy are claimed by Erancis Larrabee^and others in the execution aforesaid.” Then ■comes the condition of the bond which, in some respects, is obscure and seemingly meaningless.

In National Mechanics’ Banking Association v. Conkling et al. (90 N. Y., 116), the general rule was repeated that the liability of a .surety “ is always strictissimi juris, and may not be extended by construction beyond his specific engagement.” The judge, delivering the opinion, on pages 120, 121, says: “ The recital in such bonds, undertaking to express the precise intent of the parties, controls the condition or obligation which follows, and does not allow it any operation more extensive than the recital which is its key, and so it has been held in many cases.” Cases are then cited, and the judge proceeds: “ In Pearsall v. Summersett (4 Taunt., 593), it was held, as ■expressed in the head note, that ‘ the extent of the condition of an indemnity bond may be restrained by the recitals, though the words -of the condition import a larger liability than the recitals contemplate.’ ” The judge in support of this cites other eases. The material portion of the recitals above quoted were written.

In Griffiths v. Hardenbergh (41 N. Y., 464), it was held that surrounding and contemporaneous facts should be considered in ■construing a bond or written instrument. At the time the sureties signed the bond a letter from the sheriff was shown them which stated, among other things, that “ the parties holding the chattel mortgages say they shall sue as soon as sale is made.” So that the recitals in the bond as well as the letter were to the effect that the bond was required as indemnity against claims of persons holding chattel mortgages on the property. The recital is, “ and, whereas, •certain goods and chattels that appear to belong to the said Sally Eddy are claimed by Erancis Larrabee and others in the execution aforesaid.” It would be a forced construction to include the execution debtor in the words “and others.” The words on their face •clearly relate to persons other than the judgment-debtor. The sheriff evidently had his mind upon the claims of those holding chattel mortgages or having liens, and when the bond was executed a recovery against the sheriff by the judgment-debtor on account of ■exempt property does not appear to have been in the minds of the parties signing the instrument or of the sheriff who took it. It was demanded and executed evidently to protect the sheriff against the claims of third persons.

The property of a judgment-debtor is prima facie liable to levy and sale by virtue of an execution. When the debtor in the process relies on exemption, the claim is an affirmative one; it must be proved. In the absence of proof showing exemption, all the debtor’s property is liable. There is certainly nothing in this bond, especially in the recitals, which would in any way indicate that there was any fear or apprehension on the part of the sheriff that he would be proceeded against by the judgment-debtor upon the claim that it was exempt. It is no answer to say that she insisted upon the exemption both at the time the attachment was executed and the levy made. There is nothing to show that the sureties had any knowledge or information of any such claim on her part, and there is certainly nothing in the recitals in the bond appraising them of any such thing, but every reasonable inference is the exact reverse. It is true that in the body of the condition there are words which might be construed as including such a claim, but the fair construction of the whole instrument, including the recitals, is, and at the time must have been so understood by the sureties, that their obligation was for the purpose of protecting the sheriff against the claims of persons having liens on the property other than the judgment-debtor.

It cannot be argued, with any plausibility, that the bond contains any “ specific engagement ” to indemnify the sheriff against a recovery by the judgment-debtor, because the property levied upon and sold was exempt. Nothing of the kind is suggested by the terms of the bond.

The learned counsel for the appellant argues, with much force and ability, that it is possible to include exempt property within the bond. But such a construction requires great skill and ingenuity to impart to it plausibility. It is not the ordinary one which would be attached to the instrument.

Under such circumstances, it should not be construed to extend, as against sureties, so far as to include exempt property owned by the judgment-debtor. The letter was properly admitted in evidence, together with the other circumstances proved at the time of the execution, of the bond; they were all a part of the res gestee and threw light upon the construction of the instrument executed.

The judgment must be affirmed.

Dwight, P. J., and Macomber, J., concurred.

Judgment appealed from affirmed. '


source: Caselaw Access Project

author: Macomber, J.:

license: Public Domain

text:
    JENNIE B. DEWEY, Respondent, v. CALVIN P. BROWN, Appellant.

      Commissions upon sales — what sales are covered, by a contract therefor.

    In an action brought to recover commissions upon sales it appeared that, on November 20, 1886, a verbal contract was made between one Dewey and the defendant, whereby Dewey agreed to sell wheels for the defendant during a trip which the former then contemplated making in Michigan and elsewhere, upon which sales made, or orders taken by him therefor, a commission of five per cent was to be paid by the defendant. After his return from this trip, on the 27th day of December, 1886, Dewey, at the request of the defendant, wrote to various persons and companies soliciting further orders for wheels, to be furnished as they should be wanted during the year 1887. In response to which letters orders were received and sales were made.

      Meld, that Dewey was entitled to commissions as well upon sales made, in response to his letters, as upon those sales which had been made upon his personal application during his trip.
    Appeal by the defendant Calvin P. Brown from a judgment of the Supreme Court, entered in the Ontario county clerk’s office ■on the 8th day of May, 1890, upon the report of a referee.

      E. M. Morse, for the appellant.

      E&win T. Hieles, for the respondent.
   Macomber, J.:

This action wa,s brought to recover commissions upon sales made, by the plaintiffs assignor, Albert L. Dewey, in behalf of the defendant, in the months of November and December, 1886, in the States of Ohio and Michigan.

The defendant is the proprietor of a manufacturing establishment known as the Shortsville Wheel Company, On the 20th of November, 1886, a verbal contract was made between Albert L. Dewey, the plaintiff’s assignor, and the defendant, whereby Dewey agreed to sell wheels for the defendant during a trip which he then contemplated in Michigan and elsewhere. The compensation secured by this agreement to Dewey on all sales made, or orders taken by him,, was a commission of five per cent, being the sum ordinarily allowed for such services by the defendant and other manufacturers.

After his return from a canvassing trip in the States of Ohio and Michigan, and on the 27th day of December, 1886, Dewey, at the request of the defendant, wrote to various persons and companies soliciting further orders for wheels, to be filled as they should be wanted during the year 1887.

The referee has found, upon adequate testimony, that, while the agent was in these States, and between November 20 and December 27, 1886, he took orders for wheels for the defendant of the persons, corporations and firms named in the report. In response to such letters written by Dewey, after his return home, orders were sent in from some of such persons so addressed; and the total sales made by the defendant upon such orders were $12,083.54, five per cent of which would be $604.18. There remained unpaid to the plaintiff’s assignor of these moneys the amount stated in the report.

The principal litigation turns upon the question, whether or not Albert L. Dewey was entitled to commissions on these particular orders so procured at least in part by letter. The contention in behalf of the appellant is that he is entitled only to commissions upon such sales as he effected while personally in Ohio and Michigan, and not on sales which resulted from letters which he wrote after his return home. The defendant, though availing himself of the profits of such orders given in response to Dewey’s letters, seeks to' avoid liability upon the ground that Dewey’s services ceased upon his return home as an agent traveling upon commissions, and that he was engaged merely in clerical work for the accommodation of the defendant in writing these letters. But the defendant has failed to show any new employment of Dewey. After the latter’s return home the interview and consultation between the employer and employee were in harmony with the original contract and supplemental thereto. We are unable to discover any reason why the commissions of the agent should be limited to the orders personally received by him while away from home. For aught that appears the soliciting letters, written after his return from his western trip, were but a continuation of his efforts to secure sales, though sent at the special instance of the defendant. It is not perceived that the orders so sent in were different in character from those the agent had personally received.

It follows, therefore, that when the sales made by the defendant resulted from such efforts of his agent the percentage contracted for was due and payable. Alike in the ease of personal solicitation, and by written communication, the purchaser and the seller were brought together and the contract resulted to the advantage of the-seller, upon which the percentage contracted for is to be reckoned. There remains nothing more to be done in the sales thus effected than in cases of orders which were personally received by the agent while traveling. In either case the manufacturer had the right to reject the order if it contemplated a credit with which he was not satisfied. But where the minds of the parties, seller and buyer, are brought together by the acts of the agent which are the proximate cause of the sale, the commissions provided for by the contract are recoverable. (Sussdorff v. Schmidt, 55 N. Y., 319 ; Martin v. Silliman, 53 id., 615; Lloyd v. Mathews, 51 id., 124.)

The learned referee has, with great discrimination, rejected all claims made by the plaintiff’s assignor which were not clearly brought within the terms of the original contract.

The judgment appealed from should be affirmed.

Dwight, P. J., and Oorlett, J., concurred.

Judgment appealed from affirmed.


author: Corlett, J.:

text:
    ADA A. HYER, Appellant, v. GEORGE SUTTON, Respondent.

      Chattel mortgage — taking possession of, and selling the chattels under the safety clause thereof — effect of doing so maliciously.

    Under a clause iu a chattel mortgage, to the effect that if the mortgagee deemed the property or debt unsafe it should be lawful for her to take possession of such property and to sell the same, the mortgagee took and sold the property at public auction, and thereafter brought an action against the mortgagor for the balance of the debt, after crediting him with the proceeds of the sale of the chattels, alleging in the complaint that the plaintiff had deemed herself unsafe, and had good reason for such belief.
    The answer denied these allegations and alleged that the “ plaintiff took possession of said property in bad faith, and from motives not contemplated or provided for in said chattel mortgage, or- connected with the fact or feeling- of the security or insecurity of said property or debt, to wit, from malice and from a pressing need for money.”
    Upon the hearing of a demurrer, interposed by the plaintiff to this answer:

      Held, that as the demurrer admitted that the plaintiff took the property, influenced by malice and from a pressing need of money, and not because she felt unsafe, she was not protected by the power conferred by the mortgage in so doing, and the answer should be sustained.
    Appeal by tlie plaintiff from, a judgment of the Supreme Court, entered in the office of the clerk of the county of Erie on the 26th day of September, 1890, overruling the plaintiff’s demurrer to part of the defendant’s answer, with notice of an intention to bring up for review upon such appeal the decision and the order overruling said demurrer, dated the 22d day of September, 1890.

      Tracy O. Becker, for the appellant.

      William 8. JRcmn, for the respondent.
   Corlett, J.:

On the 2d day of July, 1888, the defendant executed a chattel mortgage to the plaintiff to secure the sum of $Y00. It covered a printing press and some other personal property. It provided for payment within five years from the date of the mortgage, with semiannual interest, with the right to pay $100 and interest at any time.

It provided that, in case of non-payment, the mortgagee could -enter the premises and take possession, and then contained the following clause: “And in case the said Ada A. Johnson shall at any time deem said property or debt unsafe, it shall be lawful for her to take possession of such property and to sell the same,” etc.

On the 28th day of May, 1890, the plaintiff took the property, claiming that she deemed herself unsafe, and sold it at public auction for $118.65. The expenses of the sale amounted to thirty-eight •dollars and fifty cents, leaving the amount unpaid, $630.85. This action was brought to recover the deficiency.

The complaint alleged, among other things, that the plaintiff deemed herself unsafe, and had good reason for such belief. The answer denied those allegations and alleged that the “ plaintiff took possession of said property in bad faith, and from motives not contemplated or provided for in said chattel mortgage, or connected with the fact or feeling of the security or insecurity of said property or debt, to wit, from malice and from a pressing need for money.”

The plaintiff demurred to the portion of the answer above quoted, and to another portion setting up a counter-claim upon the ground that such a plea was not permissible in an action of tort. The last branch of the demurrer was abandoned on the argument. The •demurrer was heard at a Special Term in Buffalo in September, 1890, and was overruled, with costs. Judgment was entered, and the plaintiff appealed to this court.

The terms of the mortgage were such that the right of possession of the property described in it, remained in the defendant until the •debt fell due, unless the plaintiff deemed herself unsafe. She took the property, claiming to have done so by virtue of this power conferred by the mortgage. The sole question upon this appeal is, whether the plaintiff had a light to take the property under the circumstances, and inspired by the motives stated in the answer.

The plaintiff’s contention is that, as the answer admits, the mortgage to be a valid instrument, and that as something remains unpaid thereon, she had a right to take the property, and that malice or bad faith constituted no defense. The learned counsel cites several authorities in support of this position, but all of them proceed upon the assumption that the mortgagee deemed himself unsafe. Such was Allen v. Vose (34 Hun, 57) and all the cases cited.

The argument of the learned counsel for the appellant seems to proceed upon the theory that the taking of the property is conclusive evidence that the mortgagee deemed herself unsafe. In the absence of proof it would be assumed that the taking was by virtue of the authority conferred in the instrument, and no bad faith would be presumed. But the demurrer in the case at bar admits, that the plaintiff took the property in bad faith, influenced by malice, and from a pressing need of money, and not because she felt unsafe. The plaintiff’s contention cannot be sustained either upon principle or authority.

It is entirely clear that if a person takes property under such a clause in a mortgage, not because he deems himself unsafe or the debt insecure, but inspired by other and unjustifiable motives, he would not be protected by the power conferred in the instrument. ( Werner v. Bergman, 28 Kansas, 65 ; Forlong v. Cox, 77 Ill., 293 ; Davenport v. Ledger, 80 id., 574; Roy v. Goings, 96 id., 361.)

The judgment must be affirmed, with costs.

Dwight, P. J., and Macomber, J., concurred.

Judgment appealed from affirmed, with costs.


author: CoRLETT, J. :

text:
    REUBEN W. GIFFORD, as Receiver, etc., Appellant, v. ARETAS W. RISING, Respondent.

      Receiver in supplementary proceedings — his authority ceases when enough is received to pay the judgment.

    The duties of a receiver, in proceedings supplementary to execution, are ended wlien tlie judgment he is bound to enforce is fully paid. When, by virtue of his receivership, although the judgment is not actually paid, it is abundantly secured or the receiver has enough money in his hands to extinguish the judgment, he will not be allowed to recover other property or collect other judgments existing in favor of the judgment-debtor.
    The receiver has not a right, upon proof simply that he has been appointed receiver of the property of the judgment-debtor, to recover any and all property of the judgment-debtor, or any and every debt due him, or to recover more than enough to satisfy the particular claim under which he has been appointed receiver.
    Appeal by the plaintiff from a judgment of the Niagara County Court, entered in the office of the clerk of the county of Niagara. on the 17th day of April, 1890, on the hearing of an appeal from a judgment of a justice of the peace of the town of Wilson, in favor of the plaintiff, and reversing, with costs, the judgment appealed from.
    The action was brought by the plaintiff, who had been appointed receiver of the property of one Chauneey M. Rising by an order of the county judge of Niagara county, to recover a legacy or bequest which had been left to the judgment-debtor, Chauneey M. Rising, by one Samuel S. Rising.

      Henry M. Davis, for the appellant.

      George D. Judson, for the respondent.
   CoRLETT, J. :

Samuel S. Rising died in October, 1879, leaving a will, which was admitted to probate. In the will he devised to his son Chauneey, and Jane, his wife, an annuity of $200, one hundred payable on the twenty-eighth day of October and the other on the twenty-eighth day of April of each year. lie also devised to the respondent 133 acres of land, charged with the payment of the annuities. The respondent accepted this devise, took possession of the land and paid the annuities up to and including the 28th day of October, 1882, and before the 12th day of October, 1885, certain other claims, the amount of which was matter of controversy between the parties.

On April 26,1875, Washington H- Gifford recovered a judgment-against Chauneey W. Rising, to enforce the payment of which the plaintiff was appointed receiver in proceedings supplementary to execution on the 26th day of August, 1885, by the county judge of Niagara county.

In June, 1886, an action was commenced to recover the amount of the unpaid legacies. Issue was joined in that action, the cause was referred, a trial was had, which resulted in a report in favor of the plaintiff, upon which judgment was entered for $590.71. The defendant appealed from that judgment, which was affirmed (55 Hun, 61), the court holding, among other things, that during the joint lives of Chauneey and wife the annuities belonged to him. This judgment was paid in March, 1890, and satisfied the judgment upon which the plaintiff was appointed receiver.

In October, 1889, the receiver commenced another action against the respondent to recover three more annual legacies of $200 each, accruing between June 26, the date of the. commencement of the first action, and October 26, 1889. In February, 1890, judgment was recovered for $739.10, including interest and costs, no part of which has been paid.

Before judgment in the last action, this action was commenced in a Justice’s Court for $100 for the annuity falling due October 28, 1889, in which judgment was recovered on the ninth day of December of that year for $106.32 damages and costs. From this judgment the defendant appealed to the County Court, where, in March, 1890, the justice’s judgment was reversed. From the judgment entered on the reversal the plaintiff appealed to this court.

The learned county judge before whom the appeal was heard wrote the following opinion:

“ The papers contained in the return in this action show clearly that the plaintiff, in a prior action in the Supreme Court, recovered judgment against the defendant for the full amount of the judgment, in respect of which plaintiff was appointed receiver of Chauncey W. Rising, and that on the trial of this action no evidence was given tending to show that the receivership has been extended, or to show what amount remained unpaid, if anything, upon the claim represented by the receiver plaintiff.

“ The action seems to have beep brought upon the theory that as the plaintiff had been appointed receiver of the property of the judgment-debtor, he had a right, without proof of any fact beyond that of his appointment, to recover any property of the judgment-debtor or any debt due him.

“ This I believe a mistaken view of the law. The receiver, under the rule laid down in O'Connor v. The Mechanics' Bank (7 N. Y. Supp., 380), is not entitled to recover more than enough to satisfy his claim, particularly as against a third party, as in this case. It seems that the recovery in the first action in the Supreme Court is prima facie, at least, proof that the plaintiff has recovered all he is entitled to recover as against the defendant here. The judgment is not sustained by the evidence and should be reversed, with costs.”

The case shows that the judgment affirmed on appeal to this court was sufficient to pay the one to enforce which the plaintiff was appointed receiver.' There is no proof showing or tending to show that the judgment was not perfectly good; in fact, it appears that it was afterwards fully paid, and enough realized to pay the judgment to enforce which the receiver was appointed. In addition to this, security was given on appeal to this court.

The duties of a receiver in proceedings supplementary to execution are ended when the judgment he is appointed to enforce is fully paid. After that he could not by virtue of his receivership collect additional demands. When, by virtue of his receivership, the judgment is not actually paid, but abundantly secured, and the receiver has enough in his hands to extinguish the judgment, no reason is seen why he should be allowed to recover other judgments or collect other demands.

The conclusion reached by the County Court was correct, and the judgment must he affirmed.

Dwight, P. J., and Macombee, J., concurred.

Judgment of Niagara County Court reversing a judgment of the Justice’s Court affirmed, with costs.


author: •CORLETT, J. :

text:
    NICHOLAS A. ALPAUGH, Commissioner of Highways of the Town of Castile, N. Y., Respondent, v. SUSAN M. BENNETT, Appellant.

      Highways — removal of encroachments thereon, under section 103, chapter 245 of 1878 — must be based upon actual user

    The authority conferred by section 103 of chapter 245 of the Laws of 1878, relating to the right to remove obstructions or encroachments upon highways, which have been used as public highways for twenty years or more, does not extend beyond the actual user, nor does that act confer any power upon a commissioner of high-ways to make any determination or adjudication, except within the limits of such actual occupancy.
    The question as to the existence of the highway must be determined upon the basis of the extent of the user.
    Appeal by the defendant, Susan M. Bennett, from a judgment of the Wyoming County Court, entered in the office of the clerk of the county of Wyoming on the 16th day of January, 1890, affirming ■a judgment rendered by and before Walter Shay, Esq., a justice ■of the'peace of the town of Castile, on the 9th day of August, 1889.

      Abbott c& Abbott, for the appellant.

      II. W. Smith, for the respondent.
   •CORLETT, J. :

Previous to 1821, the town of Castile, in the county of Wyoming, was a part of the town of Perry. There is a highway, never recorded, so far as appears, running nearly east and west in the town of Castile, which existed before the formation of the town. There is no record that it ever was laid out.

In July, 1889, an application was made to summon twelve freeholders to determine whether an encroachment had been made upon the highway above referred to. Such proceedings were had that, on the ninth day of August of that year, six of the freeholders found an encroachment by one Hiram Owen, a former occupant. The justice of the peace before whom the proceedings were had, thereupon rendered judgment in favor of the highway commissioner of the town of Castile against the defendant. Prom this judgment the defendant appealed to the Wyoming County Court, where the judgment was affirmed, and the defendant appealed to this court. No opinion was written by the learned county judge, but in a letter to the appellant’s counsel he states, in substance, that sickness had prevented him from examining the case.

On the 15th day of May, 1889, George P. Lucas made a survey ■of this highway as follows :

“ Survey of an old road running east and west through lot 37, Ogden tract, in the town of Castile, and past the farm-house of Prosper Justiu. Beginning at two small butternut trees standing together near the center of the county line road, and near the north-east corner of Prosper Justin’s land; thence north 55° 10’ west two chains and fifty-five links to a stake bearing S. 3-| W7 magnetic, 37-| links from a chestnut tree 21 inches diameter marked with three hacks on south side and bearing N. 34, W. 62 links, from the west corner of a notch chopped on the north side of a chestnut tree 36 inches in diameter, standing near the south bounds of the highway; thence west to the west line of lot 37 to intersect the center of the highway running west from near Prosper Justin’s house, across lot 38, Ogden tract. The above is center line of the road, three rods wide.

“GEORGE F. LUCAS,

Swr'oeyor.

“ Surveyed May 15, 1889.”

Afterwards, and on the 10th day of July, 1889, the commissioner of highways of the town of Castile made an order based on the above survey, the commencement of which was as follows :

Whereas, a road has been used as a highway for more than twenty years in the town of Castile, county of Wyoming, N. Y., and according to the best of my knowledge and belief said highway was originally duly laid out, the record of which, if any ever existed, has been lost or destroyed, which said road was originally intended to be of the width of three rods.” It then proceeds to recite the survey and directs the removal of the fence (which was the alleged obstruction) so that the highway might be of the breadth originally intendéd.

Several witnesses were examined on the trial before the justice. It appeared by the testimony on behalf of the plaintiff that the survey must have been based either on the judgment of the surveyor or on information derived from others, or both. The survey seems to have been made without reference to the beaten track at the time of making it. One witness for the plaintiff testified that the fence sought to be removed was formerly about the middle of the old road. He does not testify as to the length of time or extent of travel north of the present fence. Another witness on the part of the plaintiff testified to the effect that the beaten track had always been south of the fence sought to be removed, and about where it is at the present time.

A number of witnesses testified on behalf of the defendant, all agreeing that no road had ever been traveled at the place where the fence stands, or north of it, and that in fact there had been occasional moving of the traveled portion further north, so that at the present time the road as used is north of where it formerly was.

All the witnesses on the part of the defendant testified to the effect that the present fence, claimed as an obstruction, was built where it now stands about ten years ago by Hiram Owen, and that it was placed where the old fence stood. There was no evidence on either side tending to show that the road then was or for many years had been traveled to the extent of the survey.

The contention on the part of the plaintiff was, that the survey truly describes the location of the old road, and that the fence sought to be removed stood nearly at its center. But there is no evidence on the part of the plaintiff showing how long the road was traveled at the place where the fence stands, or north of it.

The claim on the part of the defendant was, that the road had never been traveled as far north as the location of the present fence; that, in fact, the beaten track was formerly further south than it now is, and that the fences on the south side had been gradually moved north. The defendant insists, and the evidence produced by her on the trial tended to show, that there never was a highway or road at the place occupied by her fence, or north of it.

The controversy on the trial was mainly limited to the question where the highway formerly was, and whether it was truly described in the survey. There was no controversy as to the fence being owned by the defendant or questioning her occupancy and possession of the land north of it.

The counsel for the defendant on the trial moved to dismiss the complaint under section 2956 of the Code of Civil Procedure on the ground that the title to land was in question by the plaintiff’s own showing, which was controverted by the defendant. This was denied.

The plaintiff also claims that the survey is conclusive as to the location of the old road; while the defendant insists that this cannot be so, as the adoption of such a view might deprive the defendant of her land for highway purposes without compensation; also, that it would vest arbitrary power in both the surveyor and commissioner, and that if the statute conferred any such power it would be unconstitutional.

Public highways are either laid out and recorded or are made such by twenty years or more actual travel. (2 B.. S. [Banks’ 7th ed.], p. 1249, §100.)

Section 101 makes it the duty of commissioners of highways to cause roads to be opened to the width of two rods at least, which they should determine had been used as public highways for twenty years. (Snyder v. Plass, 28 N. Y., 465; Snyder v. Trumpbour, 38 id., 355.)

In Talmage v. Huntting (29 N. Y., 447), it was held that where a jury was impanneled to determine the question of an encroachment, it had no power to pass upon the width or boundary of a highway according to previous use or dedication.

In Doughty et al., Commissioners of Highways, v. Brill (36 Barb., 488; affirmed, 1 Abb. Ct. of App. Dec., 524; 3 Keyes, 612), it was held that proceedings cannot be had to remove an encroachment upon a highway where it had not been laid out. "Where lands are taken for highway purposes the owner must be paid damages. (Cook on Highways [5th ed.], 222 to 234; Chapmam et al. v. Gates, 54 N. Y., 132.)

Chapter 245 of the Session Laws of 1878, amending 2 Revised Statutes ([Banks’ 7th ed.] page 1254, § 103), provides: In every case where a highway shall have been laid out or ascertained, described and entered of record in the town clerk’s office, and all roads not recorded which have been or shall have been used as public highways for twenty years or more, and the same have been or shall be constructed in any manner or encroached upon by fences or otherwise.” It then states that in such cases the commissioner shall have power to cause the obstructions to be removed. The mode of proceeding is fully described in the sections which follow. ■

In Borries v. Horton (16 Hun, 139), it was held, in substance, that, in proceedings by the commissioner to remove obstructions, want of jurisdiction might always be shown to defeat the proceedings.

In Cook v. Covil (18 Hun, 288), it was held that the power of the commissioner was to ascertain the extent of the iiser.

In People v. Judges of Cortland County (24 Wend., 491), it was adjudged that the power of the commissioner was to ascertain the user of the road as it had existed for twenty years, but that they had no authority to create or enlarge. It was further held in that case that the commissioners exceeded their authority, but that the injured party had no remedy by appeal. It is otherwise now. (Code of Civil Procedure, §§ 3044, 3045, 3046.) To the same effect is Matter of City of Yonkers (117 N. Y., 564). It was further held in that case that the commissioners acted ministerially.

In Talmage v. Huntting, above cited, it was decided that the power of the commissioners was limited to ascertaining the boundaries as actually used for twenty years.

In Flack v. Village of Green Island (33 N. Y. St. Rep., 339), tlie questions of dedication, intent and the user necessary to establish a highway were determined.

The only power conferred upon the Justice’s Court and jury is to determine whether an alleged encroachment exists. (Section 107 •of the Revised Statutes above referred to [7th ed.], vol. 2, p. 1255.) The verdict of the jury in the present case follows the statute. The only fact found was that of an encroachment.

Applying the principles above referred to, to the facts in the case at bar, it is obvious that all the proceedings, including the trial and verdict, were based upon an erroneous assumption. The survey was made upon the theory that the person making it had full power to determine where the highway ivas and had been, without reference to where it was traveled. The order of the commissioner was based on the same assumption.

The questions litigated upon the trial were not how far or to what extent the alleged highway iiad been traveled for twenty years, but where it was originally located and traveled. At the time of the trial there were no surface indications showing, or tending to show, that the alleged encroachment stood upon any part of a road which had been traveled continuously for twenty' years. The plaintiff seems to have believed that the surveyor and commissioner could determine where the road was originally, and that all the evidence to controvert the survey or determination of the highway commissioner was immaterial, no matter how far or to what extent it might affect the seeming rights of the owner and occupant. It is a familar rule that a statute in derogation of the right of property or which takes away the estate of a citizen, must be strictly construed. (Washington Cemetery v. P. P. and C. I. R. R. Co., 68 N. Y., 591 ; McManus v. Gavin, 77 id. 36.)

The statute above referred to, which extends the right to remove obstructions or encroachments upon highways, which have been used for twenty years, cannot be construed to extend beyond actual user, or to confer any power upon the commissioner to make any determination or adjudication beyond such actual occupancy. The amendment cannot have been so intended. Having reference to the cases and statutes affecting the rights of property, it is too clear for argument that the legislature never intended to confer authority upon tlie commissioner to consider or determine any question except ■the extent of actual user. The existence of the highway must be based upon the extent of user. The jury has no question to determine except to find whether there has been an encroachment or •obstruction upon the road so used. To hold to the extent of the plaintiffs contention in the present case would involve the conferring of power upon the highway commissioner to take lands for highway purposes owned by a citizen without compensation, if he saw fit to do so.

It is needless to say that if the legislature had passed an act .allowing the taking of lands for highway purposes without compensation, it would have been unconstitutional and void. But no such ■question is involved. The statute was simply intended to allow ■obstructions and encroachments to be removed upon conceded highways, either laid out and recorded or made such by user. The amendment was not made for the purpose of depriving a citizen of his land for highway purposes without compensation.

It follows that the judgment of the County Court and Justice’s Court must be reversed, with costs.

Dwight, P. J., and Macomber, J., concurred.

Judgment of the County Court of Wyoming county and of the .Justice’s Court reversed, with costs.


author: Oorlett, J.: Dwight, P. J.: Macomber, J.,

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. THOMAS F. STARK, Appellant.

      Libel — the indictment must chmge that the words were written or printed — the statement that it was published is a conclusion of law — ■evidence in denial of malice is competent.

    An indictment charged that the accused, Thomas F. Stark, at a time and place therein stated, “wrongfully, unlawfully and maliciously did publish of and concerning one Asa T. Soule, and of and concerning the part alleged to have been taken by him, said Asa T. Soule, in a certain riot which occurred, * * * a false, scandalous and malicious libel in the words and of the tenor following: ” Following which was a copy of the alleged libel.

      Meld, that as there was nothing in the indictment showing whether the libel was written, printed or spoken, it failed to charge any criminal offense.

      That if the publication was by the mere speech, it would not be indictable.
    That, under section 275 of the Code of Criminal Procedure, the indictment must contain a plain and concise statement of the act constituting the crime.
    That the allegation that the accused had published a libel was a mere conclusion, of law and contained no statement as to how it was published, or showing in what way the act was criminal.
    That it was error to exclude a question asked of the defendant on his own behalf during the trial, “ Did you have any malice or malicious intent when you sent that paper? ” as there could be no conviction of libel without a malicious intent, and although the publication of the libel imported malice it was not conclusive evidence upon that question.
    Appeal by tlie defendant Thomas F. Stark from a judgment,, rendered on the 17th day of December, 1889, in the Wayne County Court and Court of Sessions, convicting him of publishing a libel, and from an order denying the defendant’s motion for a new trial made upon the minutes of the court, entered in the Wayne county clerk’s office on the 17th day of December, 1889, and from an order-entered in the Wayne county clerk’s office on the 17th day of December, 1889, denying the defendant’s motion made in arrest of the judgment.

      W. Henry Davis, for the appellant.

      John H. O'avyp, for the respondent.
   Oorlett, J.:

In June, 1889, the grand jury of Wayne county, at a Court of Oyer and Terminer, found an indictment against the defendant, the-formal parts of which are as follows:

“ The grand jury of the county of Wayne, by this indictment,, accuse Thomas F. Stark, of the city of Rochester, in the county of Monroe, of the crime of publishing a libel, committed as follows, to wit: That the said Thomas F. Stark, at the town of Savannah, in the county of Wayne, on or about the fifth day of March, m the year of our Lord one thousand eight hundred and eighty-nine, and prior to the date hereof, wrongfully, unlawfully and maliciously did publish of and concerning one Asa T. Soule, and of and concerning the part alleged to have been taken by him, said Asa T. Soule, in a certain riot which occurred at and in the city of Cimarron, in tlie county of Gray and State of Kansas, on tlie twelfth day of January, A. D., one thousand eight hundred and eighty-nine, in which said riot, and during the continuance thereof, certain guns and pistols, then and there being loaded with powder and leaden balls, and held in the hands of certain person or persons to the grand jury aforesaid unknown, who were then and there engaged in said riot, were shot off and discharged by the said persons so holding them as aforesaid, by reason and in consequence of which said holding in the hands, shooting off and discharge of said guns and pistols so loaded as aforesaid, one man was killed and eight other men each received and suffered gun-shot wounds, in and upon or about their respective bodies, a false, scandalous and malicious libel in the words and of the tenor following: ” Then it contains a copy of the alleged libel.

The indictment was sent to the Court of Sessions, and in December of the same year the defendant was tried upon it in that court. He was convicted and sentenced to imprisonment in the Monroe County Penitentiary for ten months. A stay was obtained and the defendant appealed to this court. The case shows that the defendant demurred to the indictment upon the ground that no criminal offense was alleged. The court overruled the demurrer. On the trial evidence was objected to on the same ground and overruled, to which exception was taken by the defendant’s counsel. A motion in arrest of judgment was also made upon the same ground, which was denied and exception taken.

The evidence showed that the defendant lived in the city of Rochester, and that Soule lived either in Rochester or Savannah. It also tended to show that in February, 1889, the defendant sent to Ammon S. Farnum, a resident of Savannah, "Wayne county, a newspaper containing the alleged libel set out in tlie indictment. The defendant objected to the evidence upon the ground that the facts were not alleged in the indictment, and upon the other grounds above, stated. The objections were overruled, the defendant excepted and the article in the newspaper was read in evidence. The evidence also tended to show that Farnum wrote to the defendant and got the newspaper at the request of Asa T. Soule, the person libeled ; also, that the purpose was to obtain evidence to secure the indictment and conviction of the defendant.

On tlie trial the defendant was examined as a witness, and asked on his own behalf this question: Did you have any malice or malicious intent wdien you sent that paper % ” The counsel for the People objected to the evidence. The court sustained the objection, and the defendant excepted.

Section 242 of the Penal Code defines a libel as follows : “A malicious publication, by writing, printing, picture, effigy, sign or otherwise than by mere speech, which exposes any living person, or the memory of any person deceased, to hatred, contempt, ridicule or obloquy, or which causes or tends to cause any person to be shunned or avoided, or which has a tendency to injure any person, corporation or association of persons in his or their business or occupation is a libel.”

Townshend on Slander and Libel ([3d ed.], § 95, p. 146) states, among other things, as follows: “ Every communication of language by one to another is a publication.” Section 98 states : “ The publication of language may be orally or in writing; the distinction between these two modes of publication is material to be observed, as it marks the boundary line, between slander and libel.” Section 99 is: “"Where the communication has not been reduced h> writing, its communication from one to another must be an oral publication.”

Séction 242 of the Penal Code, above quoted, shows that a publication maybe “ by mere speech,” but when so made it is not indictable. The distinction is shown in section 98 of Townshend above quoted. "Webster also defines a publication as being by words or writing.

There is nothing in the indictment showing whether the libel was-written, printed or spoken. It was long since held that an indictment must show on its face that the libel was written or printed. (2 Archbold’s Grim. Pr. and PL [7th ed.], 223, 224.)

It is the rule that where an exception is stated in the statute defining the offense, the indictment must show that the case is not within the exception. (People v. Brown, 6 Park. Crim. Rep., 666.) In Jefferson v People (101 N. Y., 19) this rule is restated ; but it was held not to be applicable to the indictment in that case. In Harris et al. v. White (81 N. Y., 532) it was held that where the exception is contained in the enacting clause the indictment must negative the exception. The exception in the present case is. embodied in the section of the statute creating the offense, the enacting clause.

If the publication was by words, it would be simply slander, and not indictable. There are no exceptions to the rule that an indictment under a statute must state all the facts and circumstances which constitute the statutory offense, so as to bring the accused perfectly within the provisions of the statute. (People v. Allen, 5 Denio, 76 ; People v. Taylor, 3 id., 91; People v. Burns, 7 N. Y. Crim. Rep., 96; People v. Dumar, 106 N. Y., 505 ; Phelps v. People, 72 id., 349.)

The exception here is in the section defining the offense and the enacting clause. (People v. Robertson, 3 Wheeler’s Crim. Cases, 189.) Even in an action to recover damages for fraud it is the established rule that where the proof is equally consistent with guilt or innocence, there must be a verdict for the defendant. (Morris et al. v. Talcott, 96 N. Y., 100.)

It is also settled that a party in pleading must clearly state his cause of action or defense, and when a statement in a pleading is susceptible of two meanings, the one most unfavorable to the pleader must be adopted. (Clark v. Dillon, 97 N. Y., 370.)

In criminal cases it is the universal rule that where the indictment will admit of a construction in favor of innocence, it should be adopted. Construing this indictment by these rules, which may be treated as practically elementary, it is obvious that it' fails to charge a criminal offense. The alleged libel may have been simply the verbal utterances of the defendant. There is nothing in the bill which- charges him with either writing, printing or circulating written or printed matter. It necessarily follows that no criminal offense is charged in the indictment.

This doctrine is illustrated in People v. Standish (6 Parker’s Crim. Rep., 111). In that case the defendant was indicted for illegal voting. It was alleged generally, that he, “ not then and there being a qualified voter,” did vote, etc. The particular disqualification under which he rested was not alleged. It was proven upon the trial that the defendant made a bet,, which, under the statute, disqualified him. The court held that the particular disqualification should have been alleged in the indictment. Those facts which give character to the act, and which render it criminal, should be alleged in the indictment, otherwise the great object of pleading — that of informing the party what he is called upon to answer — will be defeated.”

The indictment omits to state, as before suggested, whether the alleged libel was spoken, written or printed. It also fails to state the manner or mode of publication, whether he wrote to Farnum or sent him the newspaper, or went to his residence and talked with him, is nowhere stated. It is not even stated that he published it to Farnum, or to whom or in what way he published it. Nor is it alleged that any of the above omissions were unknown to the jurors. The cases above quoted throw light upon this branch of the case and tend to show that all the particulars requisite to show the exact character and nature of, the offense must be clearly stated. But the proposition has been decided in numerous analogous cases.

In prosecutions for the sale of liquor it has been repeatedly held that the name of the person to whom sales were made, or that it was unknown to the jurors, must be stated. (Commonwealth v. Thurlow, 24 Pick., 378 ; Commonwealth v. Thornton, 14 Gray, 41; Commonwealth v. Murphy, 2 id., 513.)

In People v. Burns, decided under the new Criminal Code (7 N. Y. Crim. Rep., 96), the indictment charged the defendant with selling impure milk. But there was no statement showing to whom the sale was made. The court held this to be a fatal defect.

Section 275 of the Code of Criminal Procedure shows that an indictment must contain “ a plain and concise statement of the, act constituting the crime, without unnecessary repetition.” The act in this indictment is not stated at all. It merely alleges the publication of a libel, which is a mere conclusion of law; but it contains no plain or other statement of the facts, how it was published or in what way the act was criminal. The? question whether a publication is or is not a libel depénds upon the facts. The term libel, without further allegations, involves simply a legal proposition.

In Butler v. Viele (44 Barb., 166) it was held that where the complaint alleged that a deed was procured by false and fraudulent representations and practices, and by undue and imj>roper influences, it stated mere conclusions of law and failed to show a cause of action. To the same effect are all the cases. (Bonnell v. Griswold, 68 N. Y., 294; Cohn v. Goldman, 76 id., 284; Buffalo Cath. Inst. v. Bitter et al., 87 id., 250.)

Tlie indictment in the case at bar simply charges the publication of a libel without alleging any facts. It is obvious, therefore, that the indictment in the two particulars above stated is fatally defective. In addition to this, a serious question arises whether the record of conviction would be a bar to another prosecution on account of its vagueness and uncertainty, it being in evidence that numerous papers might be sent to different persons in different localities and counties, and that the defendant might he guilty of a great number of criminal offenses. But the indictment in the case at har throws no light upon which of these various offenses the indictment was founded. Phelps v. People (72 N. Y., 349) illustrates the necessity of this certainty.

The publication, as the statute above quoted shows, to be libelous must be malicious. Malice imports an evil intent or wish or design to vex, annoy or injure another person. (Penal Code, § 718.)

To constitute a crime there must in all cases be a criminal intent. (Reg. v. Mullins, 3 Cox Crim. Cases, 526; People v. Farrell, 30 Cal., 316; Town of St. Charles v. O’Mailey, 18 Ill., 407; Campbell v. Commonwealth, 84 Penn. St. Rep., 197; Genet v. Mitchell, 7 Johns., 130 ; People v. Terrell, 33 N. Y. St. Rep., 368; People v. Sullivan, 4 N. Y. Crim. Rep., 193.)

At one time it was looked upon as doubtful whether the party .accused could swear directly as to his intent when that question was involved in the issue.

In People v. Baker (96 N. Y., 340), where the indictment was for obtaining property under false pretenses, the defendant was asked by his counsel to state what was his intention in receiving the $575. This was objected to, excluded and held error. The same principle is decided in McKown v. Hunter (30 N. Y., 625), which was a case for malicious prosecution. Another illustration is found in Kerrains v. People (60 N. Y., 221), which was the case of an assault with a deadly weapon with intent to kill. The question in that case was, “What was your intention in taking the ax from the .shed ? ” It was rejected. The court on appeal held this to he error, .and reversed the judgment.

The principle decided in the above eases clearly shows that it was error to reject the evidence of the defendant in this case. Where the question involved in the issue is a material fact, it is of no consequence whether it is fraud, malicious prosecution, assault or libel. There can be no conviction for libel, as the statute shows, without a malicious intent. And when it was proposed to show by the defendant that no such intent existed on his part, it was error tore] ect the evidence within the above authorities. Where the question of intent is material, it may be negatived by the party accused, under the rules now firmly established.

In the case at bar there is another reason in favor of its admission. The evidence tended to show that there was a conspiracy on the part of the person alleged to be libeled with Farnum, to cause the publication with a view to prosecute the defendant. He was written to, to send the paper; he complied with this request with the understanding that it was to be returned to him. Under these circumstances, it is very clear that the motive he had in sending the paper might bear directly upon the question of his guilt.

The learned counsel for the respondent argues that the publication of the libel imports malice. This is true; but the statute doea not go to the length of making the publication conclusive evidence on that question.

The case does not rest upon the rejection of evidence, but is necessarily disposed of by the fatal defects in the indictment.

It follows that the conviction must be reversed and the defendant, discharged.

Macomijer, J., concurred.

Dwight, P. J.:

I fully concur in the opinion of Justice Corlett, to the effect that the indictment in this case was fatally defective for the want of a sufficient description of the offense sought to be charged.

An indictment is an accusation in writing * * * charging a. person with a crime. (Code of Grim. Pro., § 254.) It must contain a plain and concise statement of the act constituting the crime. (Id., § 275.) The crime sought to be charged in this case was the publication of a libel. (Penal Code, § 243.) In the indictment that crime is charged, in terms, without any statement of the act of the defendant which constituted the crime. The words and tenor of the alleged false, scandalous and malicious publication are set out, in the indictment, but there is no statement of the maimer in which the publication was made. Such a statement was essential to the indictment, because the manner of the publication was of the essence of the crime. It is not every false, scandalous and malicious .publication which constitutes a libel. By statutory definition such publication must be “ by writing, printing, picture, effigy, sign or otherwise than by mere speech.” (Penal Code, § 212.) There is no allegation in this indictment that the publication was by either of the means specified, of that it was otherwise than by mere speech.

Counsel for the prosecution refers to section 289 of the Code of Criminal Procedure as justifying the omission of a more full description of the offense. But it is very clear that the provisions of that section have no application to the question here considered. The section reads: “An indictment for libel need not set forth any extrinsic facts for the purpose of showing the application to the party libeled of the defamatory matter on which the indictment is founded ; but it is sufficient to state generally that the same was published concerning him ; and the fact that it was so published must be established on the trial.” It is plain that the sole purpose and effect of this provision is to dispense with the allegation of extrinsic facts of the particular character specified, viz., of facts showing the application of the libel to the complainant; that it prescribes a form of allegation sufficient in that respect alone; that it substitutes for' the allegation of those extrinsic facts the general statement that the-defamatory matter was published concerning the party charged to-be libeled, and that it does not dispense with the allegation of all or-any facts necessary to bring the act of the defendant within the-definition of the crime sought to be charged.

The question of the sufficiency of this indictment is presented by several exceptions of the defendant, any one of which was fatal to-the judgment. The judgment of the Court of Sessions of Wayne county must be reversed, the indictment dismissed and the defendant discharged.

Macomber, J.,

concurred.

Judgment and conviction of the Court of Sessions' of Wayne county reversed, the indictment dismissed and the defendant discharged.


author: Dwight, P. J.:

text:
    MICHAEL KAVANAGH, Respondent, v. A. L. BARBER, Appellant.

      Nuisance — right of action therefor, in a mm'ried mam residing in his wife’s house. .

    A married man, residing with, his children and wife in a house owned by the latter, may maintain an action to recover damages resulting from a nuisance in the vicinity thereof where it inflicts a particular injury upon him.
    Although not the owner, nor in the legal sense of the term,under the married woman’s acts, the occupant, or in possession of the premises upon which the injury is received, he is an occupant of the premises, with the duty as well as the privilege of such occupancy, so long as it is the home of his wife and family, and has the same right to be protected in his enjoyment of it as if the title and legal possession thereof had been in him.
    Appeal by A. L. Barber, the defendant, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Erie on the 8th day of November, 1889, in favor of the plaintiff, after a trial at the Erie County Circuit before the court and a jury, at which a verdict was rendered in favor of the plaintiff for the sum of $200.

      >Spencer Glmton, for the appellant.

      H. G. Day, for the respondent.
   Dwight, P. J.:

The action was to recover for damage alleged to have resulted to the plaintiff from a nuisance maintained by the defendant. The complaint alleges “that for about fourteen years last past this plaintiff has resided with his family, consisting of his wife and five children, in a house and lot owned by plaintiff’s wife, on the northerly side of Fourth street in the city of Buffalo;” that about six years ago the defendant erected on the same street, and opposite the plaintiff’s house, and has since maintained, an establishment for the manufacture of paving and roofing material, where he heats and boils asphaltum and other substances, which emit offensive and unwholesome gases and stenches, which render the air in the locality of the plaintiff’s dwelling foul and unwholesome; that, by reason thereof, plaintiff and his family have been put to inconvenience, discomfort, sickness and damage ; have been obliged to keep the doors and windows of their dwelling closed day and night, even in hot weather; that their food has been impregnated by such gases so as to be disagreeable to the taste and unwholesome; that fine sand and soot and other matter engendered in the defendant’s factory have been blown into the plaintiff’s dwelling to such an extent that plaintiff and his family have' been deprived of the use of the front room; that plaintiff and his family have been deprived thereby of the ordinary and comfortable use and enjoyment of said dwelling and' premises; that the plaintiff’s wife and .family have been made sick by said smells, sand and stenches, and one of plaintiff’s daughters died from sickness caused or aggravated thereby; that the plaintiff has been deprived of the services of his wife and children by reason thereof, and has been compelled to pay for medical attendance on account of such sickness, and that by reason of the matters aforesaid the plaintiff has sustained loss and damage in the sum of $10,000.

The answer admits the erection and maintenance by the defendant of the establishment and apparatus for the manufacture of paving and roofing material, from asphaltum and other substances, and that he therein heats and boils asphaltum and other substances, but denies that he has done or does so in violation of any rights of the plaintiff, and denies the evil effects and results therefrom alleged in the complaint.

The principal contention of the defendant on this appeal is that the plaintiff could not maintain the action because he was not the owner of the house and lot where the injury complained of was received. It is true that the plaintiff cannot recover for any injury to or depreciation in the value of the premises the title to which, not only, but the possession also is in his wife. Though the head of the family, he is not “ in any legal sense the possessor or occupant of the house or land in or upon which the family reside.” (Martin v. Rectar, 101 N. Y., 77.) But it is a mistake to suppose that this action is necessarily confined to injuries to the realty only. Under the technical definition of the common law the term “ private nuisance ” was, no doubt, chiefly, if not exclusively, applied to such acts as were “to the hurt or annoyance of the lands, tenements or hereditaments of another” (3 Black. Com., 216), and a common or public nuisance could ordinarily be prosecuted only by indictment or in the name of the crown or people. But whether by enlargement of the definition of private nuisance or by extending the right of private action to cases of common or public nuisance, it is certain that the individual action is not by any means confined to cases which affect the realty. The definition in Southerland on Damages, ■quoted by counsel for the appellant (vol. 3, p. 394)-, is much in point. It is there said that a private nuisance may be any wrongful act which destroys or deteriorates the property of another or interferes with his lawful use or enjoyment thereof, or any act which unlawfully hinders him in the enjoyment of a common or public right and thereby causes him a special injury.” By which is apparently intended that the former is a private nuisance because it violates a private right, the latter is a private nuisance because, though the violation is of a public right, it inflicts a particular injury upon a private person.

In Lansing v. Smith (4 Wend., 9) Chancellor Walworth said that if a person sustains no damage but that which the law presumes any citizen to sustain because it was a common nuisance, no action will lie; “ but every individual who receives actual damage from a nuisance may maintain a private suit for his own injury, although there may be many others in the same situation.” In Francis v. Schoellkopf (53 N. Y., 152) Grover, J., said : “ The rule is, that one erecting or maintaining a common nuisance is not liable to an action at the suit of one who has sustained no damage therefrom, except such as is common to the entire community, yet he is liable at the suit of one who has sustained damage peculiar to himself; no matter how numerous the persons may be who have sustained this peculiar damage, each is entitled to compensation for his injury.” And the cases are very numerous to the same effect. (Peck v. Elder, 3 Sandf. Supr. Ct., 126; Stetson v. Faxon, 19 Pick, 147; Abbott v. Mills, 3 Vt., 529.)

Whether, then, the nuisance in this case can be denominated public or private, the plaintiff had his action for the particular injury sustained by him.

But we think the case was clearly within- the sense- of the definition first given of a private nuisance. Though not the owner, nor, in the legal sense of the term, under the married woman’s acts, the occupant, or in possession of the premises upon which the injury was received, lie was an occupant of the premises, with the duty as well as the privilege of such occupancy, so long as it was the home of his wife and family. So long it was his home he had as good right to be protected in his enjoyment of it as if the title and legal possession had been in him. It was upon this theory that the court below sustained the action and submitted the case to the jury.

The case made was of an aggravated nuisance. The damages recoverable by the plaintiff were restricted by the court to such as were personal to himself, and the verdict was, in our opinion, far from excessive.

We think the judgment should be affirmed.

Macomber, J., concurred ; Corlett, J., not sitting.

Judgment appealed from affirmed.


author: Mauomber, J.:

text:
    In the Matter of the Judicial Settlement of the Accounts of FRANK A. TEED, as Administrator, with the Will Annexed, of LEWIS B. GRANT, Deceased.

      A residuary legatee and devisee limited under chapter 860 of 1860 to one-half the estate — is to take equally from real estate and personalty ■— life estate, how deducted to shoxo the value of the estate under chapter/■ 360 of 1860.
    A testator, after giving a life estate to liis wife, provided, by liis will, as follows: “I give, bequeath and devise to the New York Baptist Union for Ministerial Education, located at Rochester, New York, for the endowment of the Rochester Theological Seminary,, all the rest, residue and remainder of my property and estate, both real and personal.”
    The executors named in the will sold certain of the real estate under a power of sale contained therein, and upon the settlement of their accounts the surrogate adjudged that the sum payable to the New York Baptist Union should be paid entirely out of the avails of the personal property left by the testator, and no part of it from the proceeds of the sale of the real estate.

      Held, that, for the purpose of determining the amount which the New York Baptist Union was entitled to receive (so as not to exceed one-half of the value of the estate within the meaning of chapter 360 of the Laws of 1860), the value of the estate was to be determined at the time of the death of the testator, deducting the value of any life interest created in the estate by the testator.
    That where, before such question is determined, the life interest has ceased, the value of such life interest is to be determined by the actual duration of the life, and not by a reference to the annuity tables showing what the probable duration of such a life would be.

      Hollis v. Drew Theological Seminary (95 N Y., 166) distinguished.

      That, in the case of any increase of the estate during the period after the death of the testator, the New York Baptist Union was entitled to one-half thereof, and if'there was no increase, then, by an allowance of a reasonable amount for the-loss of the use of such property during the continuance of the life tenancy, or on the basis of the loss of interest, the New York Baptist Union should’be made as good, in respect to the estate, as though it had, less the expenses of administration, etc., received one-half of the whole property at the time of the death of the testator.
    That the surrogate erred in directing the entire amount payable to the New York Baptist Union to be paid out of the proceeds of the personalty, and that the New York Baptist Union should have been paid not to exceed one-half of the testator's estate, as limited by chapter 360 of 1860, one-half from the personal property and one-half from the proceeds of the real estate.
    That the provision of the will relating to the bequest and devise to the New York Baptist Union, to the effect that it was “for the endowment of the Rochester Theological Seminary,” was too indefinite to create a trust, and was simply the expression of a strong desire on the part of the testator that the fund so given to the New York Baptist Union should be used for one only of the many objects for which that corporation was created, namely, the support of this theological school.
    Appeal by David S. Forbes, John B. Forbes, and Elias Forbes, individually and as administrator of the goods, etc., of Julia A. Grant, deceased, upon questions of law and of fact, from a decree of tlie Surrogate’s Court of the county of Chautauqua, entered in the above-entitled matter on the 25th day of November, 1889, settling the accounts of Frank A. Teed, as administrator, with the will annexed, of Lewis B. Grant, and decreeing a distribution of the proceeds of said estate in the hands of the administrator.

      George Barker^ for the appellants.

      M. H. Briggs, for New York Baptist Union for Ministerial Education, respondent.

      Lorenzo Morris, for Susan Maria Ellis and others, heirs-at-law of Lewis B. Grant, deceased and Frank A. Teed, Administrator, respondents.
   Mauomber, J.:

Lewis B. Grant died on the 16th day of March, 1884, leaving a last will, by which, after the payment of debts and the defraying of the expense of a family monument, he gave absolutely to his wife all his household goods and effects and personal adornments, and also the use of all of his real estate and personal property during her natural life. The will also contained a provision for the payment of an annuity of $100 to the testator’s brother, Henry D. Grant; but this provision is of no moment on this appeal, because the beneficiary died before the time when such annuity, by its terms, should begin to run. The testator gave to the Cook Academy, located at Havana, N. Y., the sum of $1,000, payable in one year from the death of his wife.

The eighth clause of the will is as follows:

I give, bequeath and devise to the New York Baptist Union for Ministerial Education, located at Rochester, New York, for the endowment of the Rochester Theological Seminary, all the - rest, residue and remainder of my property and estate, both real and personal.”

The last named legatee and devisee was charged with the duty of maintaining, at its own expense, a cemetery lot in Fredonia, at a cost not to exceed three dollars a year. The executors were empowered to sell and convey any part of the real estate. The widow and one Mr. Warren were named as executors, but letters testamentary were issued to the widow alone, upon whose death, in the year 1887, letters of administration, with the will annexed, were issued to the respondent Teed.

The personal estate of the testator was inventoried at the sum of $20,896.67, and the real estate, which was sold by the executor under the power contained in the will, was of the value and netted the sum of $3,700, making in all, of real and personal property, the sum of $21,596.67. The other personal property not inventoried netted the sum of $122.89, and the amount of property set aside for the benefit of the widow, and not inventoried under the statute, was $150, making an estate of both real and personal property of $21,869.56. The debts amounting to $6,863.10.

The principal question upon this appeal relates to the amount of the bequest and devise given to the New York Baptist Union for Ministerial Education, under chapter 360 of the Laws of 1860, by which it is prohibited to a person to devise and bequeath more than one-half of his estate to corporations of this description, where there remain either descendants, or wife, or father or mother of the testator.

By the decree of the surrogate, after paying the expenses of administration of the estate, the sum of $9,092.25 was adjudged to be the amount payable to the New York Baptist Union for Ministerial Education, being one-half, according to the figures of the surrogate, of the whole estate, less the sum of $1,000 bequeathed, and theretofore paid by the administrators, to the Cook Academy. This sum was adjudged to be paid entirely out of the avails of the personal property left by the testator, and no part of it came from the proceeds of the sale of the real estate.

In this respect we think that the learned surrogate made an error. The property given to the New York Baptist Union for Ministerial Education consisted of both real and personal property, and covered the whole of the residuum of the estate after the life of the widow. "We do not perceive upon what principle the half of the entire estate was so adjudged to be paid exclusively from the personal property.

The general rule undoubtedly is, as the cases cited by the learned counsel for the respondents hold, that ordinarily bequests are payable out of the personal estate if there is sufficient thereof. But there is no authority for holding that a devise of real estate shall be .apportioned out of the personal property. The rule that should .have governed the surrogate is, that the respondent, the residuary legatee and devisee, was entitled to receive one-lialf of the personal property and one-half of the real estate.

Much discussion has been devoted to the amount of money to which, under the statute already referred to, the residuary legatee and devisee was entitled. That is to be determined in ■ this proceeding by the value of all the property bequeathed and devised, as the same was valued at the time of the death of the testator, as is well adjudged in the case of Hollis v. The Drew Theological Seminary (95 N. Y., 166). By that authority, in so far as the same is applicable to any question arising on this appeal, it was decided in an action brought, not for the distribution of the estate, but for the construction of the will, and before any time for distribution had arrived, that the value of the life interest must be taken into account in determining whether or not a certain sum bequeathed was or was not more than one-half the value of the estate within the meaning ■of chapter 360 of the Laws of 1860. It was stated there, in the •elaborate opinion of Judge Earl, that the calculation upon which the judgment rested contained an element of uncertainty as to the duration of the lives of the persons having a life estate. The court says: “ The value of the estate in a case like this must be determined .at the death of the testator, and that must be ascertained by the help of annuity tables, and such other means as are in any case available. There is no present uncertainty in the value thus ascertained for the purpose of sale, purchase or legal administration. The life -of the annuitant may turn out to be longer or shorter than the years given in the tables used, but that is a future event then unknown, •and does not enter into any calculation of present value in such .a case.”

That was a case dealing in uncertainties; in the case before us there is no uncertainty, because the proceeding is for the final distribution of an estate after the death of the annuitant, the length ■of whose life is accurately known.

The learned counsel for the respondents has made his claim, and, ■so far as we can ascertain, the surrogate has substantially held with him, by adding to the estate for the purpose of distribution what might be deemed to be an incumbrance thereon by virtue of the .life interest given to the widow for a jieriod to be determined .by the Northampton tables, which show that the widow, at the time of the death of the testator, had a prospect of life of about nine years. On the other hand, the counsel for the appellants has given an estimate, based neither upon such prospect of life nor upon the actual value of the property less the debts of the decedent.

In estimating the one-half of the value of the property to be ■received under this will by the New York Baptist Union for Ministerial Education, a result must be reached, not by the value of the property at the time of -the death of the decedent, enhanced by the value of the life tenancy for the period given by the Northampton tables, or any other proper annuity tables, reckoned on her age at her husband’s death, but must be determined in this manner: There should be added for the purpose of the calculation the value ■of that annuity, computed from the death of the testator, which was on the 16th day of March, 1884, to the death of the life tenant, which was on the 6th day of February, 1887, namely, for two years, fen months and twenty days.

Under the reasoning of Hollis v. The Drew Theological Seminary (supra), had it been known what the actual duration of the life tenancy would be, and not merely what it probably would be under proper annuity tables, the judgment of that court doubtless would have been a perfect guide to us on this appeal. There should be made a proper allowance for the value of the life tenancy for the two years, ten months and twenty days, and a credit should be given the estate for any increase thereof, whether by failure of the inventory to embrace all the personal property or otherwise.

In some form or other the residuary devisee and legatee is entitled to receive on this accounting one-half of the value of the personal and real estate as it stood at the time of the death of the testator,, less the bequest to the Cook Academy. If there has been any increase of such estate during the period since his death, the residuary legatee and devisee is entitled to one-half thereof; if there has been no increase, then in some form, either by an allowance of a reasonable amount for the loss of the use of such property during the two years, ten months and twenty days, estimated on the basis of annuity tables, or on the basis of the loss of interest, the residuary legatee should be made as good, in respect to the estate, as though it had received one-half of the whole property at the time of the death of' the testator, less the bequest to the Cook Academy. The uncollectible debts, together with all of the expense of ■ administration, must, of course, be deducted in that computation. Though, we-think, under section 2581 of the Code of Civil Procedure, we could pronounce an affirmative judgment on all the necessary facts before us, yet the record of appeal seems to be deficient in some particulars, so that in minor details we are not able to make a computation based upon the principles above stated. It follows, therefore, that the case must be returned to the surrogate of Chautauqua county for him to proceed in accordance with our view, unless counsel can agree upon the computation. In case of such agreement, the necessity of sending the case back to the surrogate may be avoided.

There remains to be considered but one other question, and that is the point made by the learned counsel for the appellants, that the trust attempted to be created by the residuary clause of the will is-invalid for the reason that this provision is an attempt to make the residuary legatee a trustee for the benefit of the Rochester Theological Seminary. The language of the will is, that this residuary bequest and devise to the New York Baptist Union for Ministerial Education, is “for the endowment of the Rochester Theological Seminary.” There is before us no proof of the existence, as a corporation, of the Rochester Theological Seminary, nor of its powers or functions. The use of the word “ endowment ” in the will is extremely loose, if, indeed, it be true, as we suppose, that there is in reality no corporation by that name. The term, manifestly, has in this connection no meaning whatever, unless it be in the nature of the expression of a strong desire, on the part of the testator, that the fund so given to the residuary legatee should be used for one only of the many objects for which the real corporation was created, viz., the support of this theological school. The expression “ for the endowment of the Rochester Theological Seminary ” in this connection is meaningless under any definition that may be found, and it may safely be elided without detriment to the meaning of the will.

The fact, which is not shown in the appeal papers, but which was doubtless known to the testator, and which we,'in common with the appellant’s counsel, may well believe to exist, is that the New York Baptist Union for Ministerial Education does support and maintain a theological school at the city of Rochester, generally spoken of as “The Rochester Theological Seminary,” but, we think, there is ' nothing in the will which would lend support to the ingenious argument of the learned counsel, that the purpose of the testator was to make the residuary legatee a trustee for the benefit of that seminary, as though the latter were an independent and separate corporation.

The decree should be reversed, with costs of this appeal to all parties, with direction to the surrogate to proceed in accordance with these principles.

Dwight, P. J., and Corlett, J., concurred.

Decree of surrogate of Chautauqua county reversed, with costs of this appeal to all parties payable out of the fund, and the ease remitted to the surrogate to proceed therein in accordance with the views expressed in the opinion.


author: Maoomber, J.:

text:
    JOSEPH POVALL, Respondent, v. THE DANSVILLE CIGAR MANUFACTURING COMPANY, Appellant.

      Laches in presenting a check for payment — failure of the hank — measure of damages — discrimination as to the different ownerships of the moneys in the account against which the check is drawn.

    In an action for money loaned, represented by a promissory note given by theDansville Cigar Manufacturing Company, of which one Nicholas Johantgen was the treasurer, the defendant interposed the defense of payment, alleging-that it had given to the plaintiff's assignor a check against an account kept in 'the name of Nicholas Johantgen in the First National Bank of Dansville for the amount of the note and interest, which the plaintiff’s assignor accepted, and canceled and delivered up the note, and continued to hold the check so given in payment thereof from the 15th day of August, 1887, until the twenty-fifth of that month when the bank failed.
    During all of this time the account upon which said check was drawn was good for the amount thereof, by reason of the fact that Johantgen, on August 13, 1887, procured to be discounted by said bank his individual promissory note, in the sum of $500, the amount of which discount was credited in the account against which said check was drawn.
    On August 25, 1887, the bank became insolvent and suspended payment, and thereafter Johantgen claimed the right to set off against the deposit standing in his name in the bank, which was the same deposit against which the check in payment of said note was drawn, the amount of the $500 note which had been discounted, and the avails of which had been credited to this account, and such set-off was assented to on behalf of the bank.
    The referee, before whom the action was tried, in ascertaining the amount of damages sustained by the defendant, by reason of the neglect of the plaintiff’s, assignor to present the check for payment, undertook to discriminate between the amount of money in the account, against which this check was drawn, which belonged to the defendant, and the amount thereof which belonged toJohantgen, and limited the amount of the damages to the former sum.

      Held, that the referee properly decided that the amount of damages to the defendant, which could be set off against the note by reason of such negligence of the plaintiff’s assignor, was the actual loss only which the defendant sustained.
    That he erred in attempting to distinguish between the respective moneys in the bank account belonging to the defendant and Johantgen, respectively, as the bank account was, in its entirety, intended to meet any commercial paper that might be drawn thereon on behalf of the defendant.
    That as Johantgen was not a party to this action his rights, as against the defendant, could not be settled heroin.
    That the entire bank account should be treated as though it was procured for the express purpose of meeting the check drawn upon the bank for the payment of the indebtedness of the defendant, and that the plaintiff could not escape the consequences of the negligence of his assignor by showing that this fund so provided at the bank did not belong exclusively to the defendant.

      Appeal by The Dansville Cigar Manufacturing Company from a judgment of the Supreme Court, entered in the office of the clerk of the county of Livingston on the 7th day of April, 1890, in. favor of the plaintiff, after a trial before a referee.

      Charles J. Bissell, for the appellant.

      F. C. Peak, for the respondent.
   Maoomber, J.:

This action is in form brought for moneys loaned and advanced to the defendant by one Mina Prusia, the indebtedness for which was assigned by the latter to the plaintiff.

The answer admits the loan and alleges that the defendant’s promissory note, at three months, was given for it, and that after the note became due, and on the 15th day of August, 1887, one Nicholas Johantgen, who was the treasurer of the defendant and authorized to pay its obligations, gave to the plaintiff’s assignor his cheek upon the First National Bank of Dansville, N. Y., for the amount of the note and interest, which the latter accepted, and canceled and delivered up the note. This allegation in the answer was proved at the trial and found by the referee. At the time the check was given, namely, on the 15th day of August, 1887, and continuously until the twenty-fifth day of that month, Johantgen’s check, held by Prusia, was good at the bank upon which it was drawn, but the plaintiff’s assignor, through negligence, failed to present the same for payment.

The learned referee has found, in accordance with the evidence, that Mina Prusia, on the 16th day of October, 1886, through her husband, acting as her agent, loaned to the defendant the sum of $570 and received the note above mentioned. During all this time Johantgen was not only the treasurer of the defendant,' but he had full charge of all its financial affairs, and undertook to, and did, provide means for paying its commercial obligations. The account which was kept by him in the bank, was composed in part of the moneys belonging to the corporation, as between that body and himself, and in part to himself, individually. The arrangement for doing the banking business in this manner was such that the corporation had no account in its own name, but all of its funds stood in the name of Johantgen. Johantgen, in turn, was charged and had agreed to keep the account of the defendant good against all liability.

On the 13th day of August, 1887, Johantgen, for the purpose of raising sufficient money with -which to pay the promissory note above mentioned, made his individual promissory note to the order of one J ohn J. Kennedy in the sum of $500, at ten days from the date thereof, which, being indorsed by Kennedy, was on that day discounted by the bank and the proceeds thereof placed to the credit of Johantgen in the account kept for him and the defendant at the bank. This obligation was, in reality, that of the defendant, and the avails thereof became the money of the defendant. Applying this note to Johantgen’s credit, the amount thereof and the balance due on the account kept in his name was $667.07:

The referee has undertaken to separate, for the purposes of this action, the interest in this sum of $667.07, owned, respectively, by Johantgen and the defendant.

On the 15th day of August, 1887, Johantgen gave his check upon the bank for $597.65, payable to the order of James O. Prusia, the husband and agent of Mrs. Prusia, and by the agent indorsed and delivered to the principal. On the receipt of this check, which is shown to have been good up to the time of the failure of the bank, the note above mentioned was surrendered and canceled.

After the making and delivery of the check, Johantgen continued to make deposits in this bank and to draw checks thereon up to the 21th day of August, 1887. The bank closed its doors August 25, 1887, and suspended payment, being insolvent, and subsequently thereto a receiver of its assets was appointed, and the affairs of the bank are now in his hands, with no prospect of any appreciable dividends. At the time of the bank’s failure the amount to the credit of Johantgen was $911.81. Here, again, the referee has undertaken to separate and divide the respective interests of Joliantgen and the defendant to this sum of $911,81, finding that $563.17 thereof belonged to the defendant, and $351.37 to Johantgen.

The referee has found as a fact that the omission on the part of Mina Prusia to present the check for payment on or before the '22d day of August, 1887, was negligence on her part. In ascertaining the amount of damages to the defendant by reason of such negligence, he has very properly decided that the actual loss only which the defendant •sustained can be recouped against the claim of the plaintiff. (First Nat. Bk. v. Fourth Nat. Bk., 77 N. Y., 329, and cases there cited.)

At tlie time of the failure of the bank there was in its possession the note of J ohantgen for $500, which was subsequently by him presented to the receiver with a verified claim against the bank, together with a demand that the note, then amounting to $501.08, should be deemed paid by deducting that amount from the credit standing on the books in his favor of $914.84, and the balance only be regarded as the amount due him by the bank. This claim was allowed by the receiver and the five hundred dollar note was by him ■delivered up to Johantgen, the amount thereof being set off by the receiver against such balance of $914.84 and the sum of $413.76 -credited by the receiver as the balance due Johantgen by the bank. The act of Johantgen in thus procuring a set-off was done in pursuance of the general authority and power which he possessed of acting for the defendant, and not through any special instructions given him at this particular time. The only question, under the facts appearing in the case, which are substantially undisputed, relates to the amount the defendant lost by the failure of Mrs. Prusia to present the check for payment.

After the application of Johantgen’s credit to the payment of the note by the receiver there remained of his credit $413.76, which was, by the sum of $183.89, less than the amount of the check. If the defendant can recoup in this action the amount of Johantgen’s loss, the last-mentioned sum would have been the amount of plaintiff’s recovery, as the learned referee concedes, but he has been unable to see any reason why the defendant can claim any more of Mrs. Prusia than defendant’s own liability was to Johantgen’s. It is here where the fallacy of the learned referee appears. Upon the findings, which are supported by substantially undisputed evidence, it is impossible to sej>arate the account at the bank and apportion one part of it to Johantgen and the other part to the defendant. The whole course of the dealings between the defendant and J ohantgen shows that, for the purpose of meeting the commercial paper used in the business of the defendant, there/ had been provided a fund at the bank, partly that of Johantgen and partly that of the defendant; and that bank account, which had always stood in the name of Johantgen, was intended to meet ■any commercial paper which might be issued in behalf of the defendant. The rights between the defendant and Johantgen conld not be settled in this action; Johantgen is not a party. The. entire fund at the bank must be treated as though it was procured, for the express purpose of meeting the checks drawn upon that bank for the payment of the indebtedness of the defendant. The plaintiff cannot escape the consequences of negligence of his assignor by showing that this fund, so provided at the bank, did not belong exclusively to the defendant; it is sufficient for the determination of her rights, and those of her transíerree, to say that it was amenable-to the checks drawn by Johantgen.

For the purpose of determining the amount of plaintiff’s damages,, the account at the bank is not separable between the defendant and Johantgen. Johantgen had a right to rely upon the fact that the-check which he had given the plaintiff’s assignor had been collected, and the account at the bank, provided by him for this and other purposes of the defendant, had been by so much lessened.

By the failure of.the plaintiff’s assignor to present the check, there was lost to the fund at the bank, provided by the defendant, through its authorized agent, Johantgen,. the sum of $413.76, instead of the sum of ninety-six dollars and fifty-seven cents, as found by the referee. This amount should be deducted from the sum- claimed by the plaintiff. A simple computation shows the balance to be-$183.89, with interest from the 25th day of August, 1887, instead of the sum of $501.08 and interest from that date, for which judgment was directed by the referee.

It follows, therefore, that the judgment should be reversed, with costs to the appellant and a new trial granted, unless the plaintiff' stipulates to reduce the judgment as above indicated, in which event the judgment, so reduced, is affirmed, without costs of this appeal to either party.

Dwight, P. J., and Cobuett, J., concurred.

Judgment appealed from reversed and a new trial granted before ■another referee, with costs to the appellant to abide the event, unless the plaintiff stipulate to reduce the recovery from $501.08 to $183.89, in which event the judgment so reduced is affirmed, without costs of this appeal to either party.