author: Barnard, P. J".: DyemaN, J.

text:
    Henry D. Leslie, as Ancillary Receiver of the Casey Machine and Supply Company, Plaintiff, v. Henry M. Goodhue, Defendant.

      Sale by a receiver [appointed by a Court of Chancery — action by the receiver against a bidder for the difference between his bid and the price finally obtained.

    The receiver of a corporation, appointed by the Court of Chancery of New Jersey, and subsequently appointed ancillary receiver by the Supreme Court of the State of New York, put up for sale in the State of New York, by order of the Court of Chancery, certain personal property of the corporation by the terms of sale ten per cent cash was to be paid by the purchaser, the sale was not to be binding until confirmed by the Court of Chancery, and, if confirmed by the chancellor and not completed by the purchaser, the receiver was authorized to resell, and hold the purchaser for the difference in price.
    One Goodhue bid at the sale, but did not pay the ten per cent cash; no application was made to the Court of Chancery to confirm the sale, or to compel Goodhue to complete his bid, but the receiver put the property up for sale again, when it brought less than Goodhue’s bid; this last sale was confirmed by the Court of Chancery, and was completed.
    The receiver thereafter brought an action against Goodhue to recover the difference between the two bids, as damages for breach of contract.

      Held, that the receiver had no cause of action, there being no contract betu een him and the bidder (Dykman, J., dissenting).
    Motion by the plaintiff, Henry D. Leslie, as ancillary receiver of the Casey Machine and Supply Company, for a new trial, upon exceptions ordered to be heard at the General Term in the first instance, by an order made upon the dismissal of the complaint at the Richmond Circuit, and entered in the office of the clerk of Richmond county on the 27th day of September, 1892.

      Alfred A. Gardner, for the plaintiff, receiver.

      Eugene Van Voorhis, for the defendant.
   Barnard, P. J".:

The plaintiff is a receiver appointed by the Court of Chancery of the State of New Jersey, of the Casey Machine and Supply Company, a corporation of that State. He is also an ancillary receiver by order of this court. By an order of the' Court of Chancery he put up certain corporate property in this State, and the defendant bid upon it, and failed to complete his bid. The property was put up again, and brought less than the defendant’s bid, and this action is brought to recover the difference'between the two bids. The sale was not to be binding until confirmed by the chancellor, and ten per cent cash was required by the conditions of sale. The defendant did not pay the ten per cent, and no application was ever made to the chancellor either to compel the defendant to complete or to confirm the sale, but the receiver at once, upon his default to pay the ten per cent, put up the property and sold it, and the sale was confirmed by the chancellor, and was completed. The plaintiff has no cause of action. There was no contract between him and the bidder. (Miller v. Colyer, 36 Barb. 250.)

He was the executive agent of a Court of Chancery, which did not empower him to make it a condition that the defendant should answer for the difference between his bid, not carried out, and a lesser bid, which was. The Court of Chancery approved the sale at the less sum, and no opportunity was given to the defendant to be heard in the Court of Chancery as to his excuse for not carrying out his bid.

The judgment should be affirmed, with costs.

Peatt, J., concurred.

DyemaN, J.

(dissenting):

This is an application for a new trial upon exceptions directed to be heard in the first instance at the General Term.

The action was brought by the plaintiff as receiver to recover from 'the defendant damages for a breach of a contract of sale in failing to complete a purchase of certain personal property.

The plaintiff was appointed receiver of the Casey Machine and Supply Company by the Court of Chancery of New Jersey, in December, 1890. That company was a New Jersey corporation, but as its property was partly in the State of New York the plaintiff was appointed receiver in this State of the same company in January, 1891.

The property in New York was sold twice at public auction previous to the sale to the defendant, and both purchasers failed to consummate the sale.

At the third sale the property was struck down to the defendant upon his bid of $20,000, but he was not prepared to pay the ten per cent according to tbe terms of sale, and the property was thereupon set up and sold again for $11,700. This action is for tlie recovery of the difference between the two bids.

The complaint was dismissed at the Circuit, and the exception of the plaintiff thereto was directed to be heard at the General Term in the first instance.

Whether the sale is to be considered a judicial sale or not, it was made upon certain written conditions, under which the defendant made his bid, and to which he thereby gave his assent.

Among other conditions were these : The terms of sale will be ten per cent cash on the day of sale, and the balance in twenty days thereafter, provided the sale shall have been then confirmed by the chancellor, and if not, then when so confirmed by him.

In case of the confirmation of the sale by the chancellor, if the purchaser or purchasers shall not attend to complete their purchase by the payment of the money, the bid and the amount paid thereon will be forfeited to the receiver, and the receiver will, at his option, hold the purchaser for the amount of his bid or resell the property, holding the purchaser for the expense of the resale and any loss which may occur by reason of the property or any part thereof bringing a smaller price or smaller prices than the bid of the purchaser so in default.”

When the property was struck down to the defendant he became the purchaser thereof under the terms of sale, and such terms became a contract between him and the plaintiff, and he was under legal obligation to perform the same.

If he had complied with the terms of sale and paid ten per cent of his bid, then the sale would have been complete, and the title of the property would have passed to him, subject only to the contingency of the confirmation of the sale by the court. In that respect the defendant submitted himself to the jurisdiction of the court when he became the purchaser at the sale.

In this view the Statute of Frauds is not an important factor in the case, for if the defendant had paid the ten per cent as he undertook to do that would have rescued the case from the statute, and no writing would have been essential.

It must be borne in mind that this action is not for the enforcement of the contract to purchase, but for damages for a breach of the contract.

■ The breach was complete and the liability of the defendant was incurred when he failed to pay the ten per cent, and that was payable at the time of the sale'.

So far we have been considering the liability of the defendant under the terms of sale alone, but we think the sale made by the plaintiff was a judicial sale.

It was made by an officer of the court under specific directions, and was subject to the approval of the court. The whole proceeding from commencement to end was under the direction of the court and was judicial in its character throughout.

Such sales are not within the mischief contemplated by the Statute of Frauds, and do not fall within its provisions.

In any view, therefore, we think the sale to the defendant was valid, and imposed upon him the obligation to complete the same, and as he failed so- to do he became liable for the damages resulting from his failure so to do.

The exception should, .therefore, prevail, and a new trial should be granted, with costs to abide the event.

' Exceptions overruled and judgment affirmed, with costs.


source: Caselaw Access Project

author: Barnard, P. J.:

license: Public Domain

text:
    Georgianna Bigelow, Respondent, v. William H. Davol and Another, Appellants, Impleaded with Others.

      Assignee of a second mortgage not madeapwrty to the foreclosure ofafñ’st mort~ gage — foreclosure of the second 'mortgage — provisions of the decree — proof of the mortgage debt.

    A first mortgage, wMcl covered the whole of certain premises, was foreclosed without making the assignee of a second mortgage on an undivided portion of the same premises a party, and the premises were sold; the assignee of the second mortgage thereafter brought an action for its foreclosure, the complaint in which did not put in issue the validity of the first mortgage ; a decree was obtained by the plaintiff, which contained a provision that on paying the proportionate part of the amount due on the first mortgage the plaintiff might take free therefrom a corresponding-proportion of the premises covered by his mortgage.

      Held, that this provision for the payment of a portion only of the amount due on the first mortgage was improper, and that the decree should, instead thereof, have directed a sale of the premises subject to whatever rights the purchaser thereof on the sale on the foreclosure of the first mortgage had therein.
    A mortgage was executed by two of the four children of a decedent, but failed as to one of the makers, and it appeared, in an action brought for its foreclosure by an assignee thereof, that the mortgage debt, if any existed, was for services rendered by the mortgagee as an attorney in behalf of the estate of the mortgagors’ deceased parent, of which the mortgagee was an execctor, but there was no direct proof of a debt as between the defendant mortgagor and the. mortgagee.

      Meld, that, in this state of the case, the mortgage was without validity.
    Appeal by tbe defendants, William H. Davol and Jennie B. Davol, from a judgment of tbe Supreme Court rendered at tbe Kings County Special Term and entered in the office of tbe clerk of Kings county on tbe 23d day of August, 1892, in an action brought to foreclose a mortgage made by Cecilia Y. Arthur and Archibald Arthur to Joseph M. Pray, executed on September 1, 1887.
    For former appeal in this case see 62 Hun, 245.

      A. P. c& W. Mam,, for the appellants.

      Joseph M. Pray, for the respondent.
   Barnard, P. J.:

The plaintiff is the owner of a mortgage executed on the 1st of September, 1887, conveying eighteen and one-quarter sixty-fourth parts of certain premises in Brooklyn to Joseph M. Pray. She acquired her title thereto in October, 1887, and her assignment was recorded in November, 1887. The premises were subject to a previous mortgage given in 1884. In 1889 this prior mortgage was assigned to one Hutchins who foreclosed it, but did not make the plaintiff a party defendant in the foreclosure action. The property was bought in by Hutchins at the foreclosure sale, and soon after his purchase he sold the land to defendant Davol. Davol went into possession and expended large sums of money in improving the property. Upon the former appeal in the case it was held that this Hutchins foreclosure did not bind the plaintiff and that she could foreclose her mortgage as if the Hutchins foreclosure had not been had. We do not think that the complaint in this action puts in issue the prior mortgage which was foreclosed. There is an averment that Davol is in possession and that the defendants, including Davol, be bound; but this is in the usual form of averment incidental to a foreclosure action. It does not in the present case mean that tlie second mortgage should be put before the first, and by a general prayer that the purchaser at the foreclosure sale of the first mortgage should be subject to the second mortgage which was not brought into the first foreclosure action. If a sale be had in this •action it will be subject to the first mortgage, and to any equities which Davol has by virtue of his purchasé as against the plaintiff. The plaintiff’s mortgage only covers a part of the premises covered by the second, and does not cover all which is described in her mortgage, and the decree in this case provides that the plaintiff may pay six and seven-eights sixty-fourth parts of the amount due on ■the first mortgage, and take the proportions covered by the mortgage free upon such payment. There is proof tending to assail the plaintiff’s mortgage, and this appeal involves these two questions, whether the provision providing that the plaintiff may pay the proportions of the first mortgage and take the land free, and whether the mortgage of plaintiff is good. We think that the provision for the payment of a portion of the first mortgage only is improper. The first mortgage covered all, and all of the property covered by it is to be held for its payment. 2 Hoff. Ch. Pr. 157.

The portion of the decree which provides for the payment of a portion of the first mortgage, should be modified, and the sale be ■directed subject to whatever rights Davol has in the premises sold. This modification will carry out the spirit of the former decision that the sale under the second mortgage is as if there had been no foreclosure of the first mortgage.

Is the mortgage good ? It was given by Cecilia Arthur to Joseph M. Pray. Although his brother joined in it, the mortgage failed •as to him. The mortgage debt was, if any existed, one for services rendered by Joseph M. Pray in behalf of the estate of their father in which he was one of the executors to the father’s will. The mortgage was given for services rendered as an attorney for the children.

The debt, if any, was from the four children. Wm. Arthur and Alexander Arthur did not or could not sign, and the whole debt, is thus put on Cecilia. The mortgage should not be held good without further proof for over one-fourth of the amount of it in any event. As between Pray and Cecilia there is no proof of a debt for any amount. Mr. Pray paid nothing, and Miss Arthur got nothing except a claim had been shown to her brother Alexander, and Mr. Pray supposed that he had told his sister Cecilia. She denies all knowledge of it. The claim was received as collateral to a claim, and this claim was for services as executor in defending the estate. There is no proof sufficient to uphold the mortgage as against Cecilia. (Collier v. Munn, 41 N. Y 143.

And it is a very significant fact that the mortgage was deemed of no force because Cecilia obtained the surplus upon the first sale with the knowledge of Mr. Pray, who was Mrs. Bigelow’s attorney; and neither Pray nor plaintiff asserted any right to such surplus. As the case now stands there is no validity to the mortgage as against. Cecilia Arthur. The plaintiff only took what Mr. Pray had to sell. Trustees v. Wheeler, 61 N. Y. 88.

The judgment should be reversed, and new trial granted, costs to. abide event.

Peatt, J., concurred.

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


author: BarNard, P. J.:

text:
    Mary F. Daly, Appellant, v. The Alexander Smith and Sons Carpet Company, Respondent.

      Risks incident to an employment — wires flying from a ea/rpet loom.

    The rule that an employee assumes the risks incident to his employment applies, to the case of a carpet-weaver, injured by a wire flying out of a loom while being used by him, where the proof shows that such wires are liable, in spite of the greatest care, to fly loose instantaneously, and that it was the weaver’s duty to watch the wires, and, if one broke, to stop the loom and insert another wire, for which purpose spare wires were prepared, where there is no proof that the wires in use were not good
    Appeal by the plaintiff, Mary F. Daly, from a judgment of the Supreme Court, entered in the office of the clerk of Westchester county on the 25th day of November, 1892, upon a dismissal of the-complaint upon the merits at the close of the plaintiff’s case at the Westchester Circuit.

      The action was brought to recover damages for a personal injury suffered by the plaintiff while in the employ of the defendant, alleged to have been caused by the negligence and failure of the defendant to furnish the plaintiff with a safe place and safe appliances for the performance of the duties of her employment.

      James M. Himt, for the appellant.

      Joseph F. DaVy, for the respondent.
   BarNard, P. J.:

The plaintiff is a carpet-weaver. On the 18th of September, 1891, while weaving for the defendant a head came off from the end of a wire and the wire flew out and hit the plaintiff in her eye, from which blow she subsequently lost the use of the eye. A wire such as the one which caused the accident was liable to fly loose. There were spare wires prepared and it was the custom of the weaver to put them in when one was discovered to be bad. The proof does Hot show that a break in the wire is usually dangerous. The machine must be at oncfe stopped so as to replace the broken wire, otherwise the weaving will be bad. It does not require a loom-fixer to put in a wire in the place of a broken wire. A loom-fixer Usually went around twice a day. He is not proven to have omitted the inspection on the day of the accident. When the loom is in motion he can see a defect such as caused the accident, no better than the weaver. It was the plaintiff’s duty to watch the fabric woven and to watch the wires, and if one .broke to stop the loom and replace it with a good wire, which usually hung in front of the loom. The inspector usually did not put the wire into the loom, the weaver did. The inspector’s duty was to examine the wires before using. There is no proof that the wires were not good. There is proof that wires will fly in spite of the greatest care, fly in an instant. The proof, therefore, fails to show any neglect upon the part of the master, and the ifule that an employee takes the risks of the employment applies to her.

The judgment and order denying new trial should, therefore, be affirmed, with costs;

Pratt, J., concurred; DyKMAN, J., not sitting.

Judgment and order denying new trial affirmed, with costs.


author: BabNabd, P. J.:

text:
    John Bohleber, Appellant, v. August Waeldin and Charles Schmidt, Respondents.

      Assignment of a policy of life insurance, “as interest may appear” — right to redeem — burden of proof — subsequent assignment by the original assignee.

    When a person, who has taken out an insurance policy on his own liie, payable on his death to his wiie and on her death to him, and who has paid premiums thereon, has, together with his wife, assigned the policy to one Schmidt “as interest may appear,” the assignee can recover no more than he, as between the parties, has advanced upon the policy, and the assignors are entitled to the remainder.
    In the case of such a qualified assignment of a policy, the assignor, on bringing an action to redeem, will be entitled to an accounting and, upon payment of what is due the assignee, to a reassignment.
    On the trial of such an action to redeem, the plaintiff, when he has proved the assignment, qualified by the words “as interest may appear,” has a right to assume his own interest proven by the policy and to call upon the assignee for proof of his interest.
    A subsequent assignment of the policy by the original assignee claiming under such a qualified assignment will not affect the original assignor’s right to redeem.
    Appeal by tbe plaintiff, John Bohleber, from a judgment of the Supreme Court rendered at the Kings Special Term, after a trial before the court without a jury, dismissing the complaint because of the plaintiff’s failure of proof, and entered in the office of the clerk of Kings county on the 22d day of November, 1892.
    The action was brought to obtain an accounting of all premiums paid by the defendants upon a policy of life insurance, which had been assigned by the plaintiff and his wife, Mary Bohleber, since deceased, to the defendant Schmidt, and subsequently assigned by Schmidt to the defendant Waeldin, and for a reassignment of the policy to the plaintiff on payment to the defendants of the amounts found due them.

      F&rncmdo Solinger, for the appellant.

      William A. Guok and 8. T. Maddox, for the respondent.
   BabNabd, P. J.:

It was proven on the trial that the plaintiff, in 1877, took out a policy of life insurance on his own life, payable on his death to Mary Bohleber, his wife, and on her death to the plaintiff. Presumably, the plaintiff paid the quarterly premiums to the Equitable Life Insurance Society, which company issued the policy, up to the fall of 1889. On the fourteenth of December in' that year, the plaintiff and his wife assigned the policy to the defendant, Charles Schmidt. Schmidt, on the 28th of March, 1892, assigned the policy to the defendant Waeldin. The title to assignment to Schmidt was qualified 'by the words as interest may appear.” These are common words and have a definite meaning. It is apart of a transaction thus limited that the assignee can recover no more than he, as between the parties, has advanced upon the policy, and the plaintiff the remainder. (Mussey v. Atlas Ins. Co., 14 N. Y. 79; Pitney v. Glens Falls Ins. Co., 65 id. 6.)

With this fact in the case, the plaintiff was entitled to an accounting, and, upon payment of what was due, to a reassignment. His complaint was one to redeem, and the defendant Schmidt claimed that the assignment was for a full and valuable consideration. This was an evasive issue. The plaintiff’s case was stated clearly. That the assignment was made when the parties insured were very poor. That the plaintiff lived with defendant and worked for him, and that the assignment was made upon Schmidt’s promise to pay the premiums and keep the policy alive. Of course, this was a good consideration, but it only secured the assignee for his payments under the assignment, and an answer that the assignment was for an adequate consideration, fell short of what was required. The plaintiff had a right, therefore, when he proved the assignment, qualified by the words that the assignee was to hold the policy for all interests, to assume his own,- proven by the policy, and to call on the assignee, Schmidt, for proof of his interest, so that he could repay all which Schmidt had paid on the faith and security of • the assignment. (Elsberg v. Sewards, 21 N. Y. Supp. 12.)

The subsequent assignment of the policy to the defendant, Waeldin, is óf no importance. Schmidt could only sell what he had to sell, and Waeldin took his title subject to the plaintiff’s right to redeem, if he made out a case to redeem.

The judgment should be reversed and a new-trial granted, costs £-to abide event.

Peatt, J., concurred.

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


text:
    William Buchanan, Plaintiff, v. Noah Tebbetts, Defendant.

      Power of sale after a definite term, — not a swpension of the power of alienation.

    A power of sale to be exercised after a definite term does not necessarily create an. illegal restraint upon alienation.
    A will gave the residue of the testator’s property to his children; by .another clause, the executors were authorized, at anytime in their discretion “after the lapse of one year, but not over two years from the date ” of the testator’s death, to sell a certain parcel of the testator’s land, and were directed to deduct from the proceeds the taxes and assessments then due, and a sum then owing to the testator by a person named, and to pay the balance to such person; the power of sale was executed after one year and within two years after the testator’s death.

      Held, that there was no suspension of the power of alienation, and that the power of sale was valid, and a title acquired thereunder was good.
    Case agreed upon in a controversy submitted without action, wherein William Buchanan, the plaintiff, claimed judgment for the specific performance by Noah Tebbetts, the defendant, of a contract for the sale of certain real estate in the county of Kings, the title to which depended upon the validity of a • power of sale in reference thereto, contained in the will of Augustus Ivins, deceased.

      J. W. Peokett, Jr., and George P. Dutton, for the plaintiff.

      Noah Tebbetts, defendant, in person.
   Barnard, P. J.:

By the will of Augustus Ivins, who died in October, 1885, he bequeathed all the rest and residue of his property to his three children. By the fourth clause of this will the executors were, at any time in their discretion, after the lapse of one year, but not over two years from the date of my death,” authorized to sell a parcel of land conveyed by Kalbfleisch & Conselyea to the testator. By this clause the executors were directed to deduct all taxes and assessments then due and the entire sum of money owing to testator by William T. Mills, and to pay the balance to Wm. T. Mills. By the will the property would descend to the three children of testator if this limited power is void. If the power is good it would descend to them, subject to the execution of the power. The power-of sale was executed after one year and within the two years after testator’s death. The power of sale is good. There was never for a moment a suspension of the power of alienation. The three children had the title, subject to the power. The testator provided that the land should be sold for MiHsr benefit and for the benefit of the estate. There were always persons in being who could give a good title. A power of sale after a definite term does not necessarily create an illegal restraint upon alienation. (Garvey v. McDevitt, 72 N. Y. 556.)

The title which depends on the validity of this power is good, and the defendant should take the title offered.

Pratt, J., concurred.

Judgment for plaintiff upon submitted case, and that defendant take title.


text:
    Halcyon SKINNER, Respondent, v. Sophia H. White, Appellant.

      Bond executed by a married woman for a debt of her husband —pleas of invalidity of the bond and of payment — counterclaim not affected thereby.

    In an action brought against the maker of a bond, a married woman, to recover the full amount thereof, held, that the setting up of a plea of payment, in connection with a denial of the bond, did not preclude the defendant, on a dismissal of the complaint on the ground that the bond was not binding on her, because it did not charge her, separate estate with its payment, from recovering an affirmative judgment on a counterclaim for the same amount as that alleged in the plea of payment, being the value of goods sold and delivered by her to the plaintiff, for which it appeared she had never been paid, although the bill therefor had been receipted by her husband, for whose debt the bond had been given, for which receipt for the price of the goods the husband had received nothing from the plaintiff except a credit on his debt, and which application of the price of the goods was not shown to have been made with the knowledge or consent of the defendant.
    Appeal by the defendant, Harriet S. White (sued as Sophia H. White) from that part of a judgment of the Supreme Court, entered in the office of the clerk of Westchester county on the 6th day of October, 1892, which dismisses the defendant’s counterclaim.
    The judgment was entered upon the report of a referee; by it the complaint was dismissed upon the merits; the counterclaim of the defendant was dismissed, and costs were awarded to the defendant.

      James M. Ennt, for the appellant.

      Paljph E. Prwne, for the respondent.
   Barnard, P. J.:

This action is brought to recover upon a bond executed by the defendant for $1,500, given on the 14th of February, 1877. The evidence showed, upon the trial, that the bond was given for a debt of her husband and did not charge the separate estate of the obligor, and that, therefore, the bond was not binding on the defendant, and the complaint was dismissed. The plaintiff does not appeal. It was proven on the trial that about the 1st of May, 1880, the defendant did enter into a. separate business of her own and that her husband was made by her a general agent and manager of the business. While the defendant was conducting her business she sold and delivered to the plaintiff goods to a large amount. Her husband receipted the bill and recéived no money or other consideration therefor other than a credit on his old debt to the plaintiff. The referee refused to give her judgment against the plaintiff therefor, and the question presented on this appeal is whether this was erroneous. There was no direct proof that the goods sold plaintiff were applied on the old debt by the defendant’s assent, or even with her knowledge. The parties derive' such assent from the pleadings. The plaintiff complains that the bond is wholly unpaid, principal and interest. The complaint is amended so as to leave out the clause that no payments have been made on the bond, and demands payment of the entire amount. The answer denies the bond; avers payment on it by the exact amount of the bills receipted by her husband, and sets up a counterclaim for the same sum and asks an affirmative judgment. These pleadings, in the absence of proof on the trial, leave the parties to their rights as they shall appear on such trial. It appeared that the bond was invalid. It did not appear that the defendant authorized her husband to apply her property to the payment of his debts. It did appear that the plaintiff had her property and that it was not paid for. The plaintiff’s original pleading, under oath, denied any payment. The amended pleading implies that no payment was made. The defendant denied bond and asserted payment and counterclaim. The defendant had the right to plead as many defenses as she had, and if she pleaded, payment and counterclaim, and the proof showed counterclaim, there is no reason because of the plea of payment, which calls for a refusal to give a judgment for a proven counterclaim.

The judgment, so far as appealed from, should be reversed, and the case sent to the Circuit for trial. The proof shows that there is no long account involved, and the sole question -is whether the goods sold were applied on the bond by the defendant’s assent. Costs to abide event.

Dykman, J., concurred.

Judgment, so far as appealed from, reversed, and new trial granted. Costs to abide event. Order of reference reversed and trial to be at Circuit.


text:
    Leonora S. Gray, Respondent, v. William T. Baker and Another, Appellants.

      Libel — examination of the plaintiff before answer.

    An order obtained by the defendant for the examination of the plaintiff, before answer, in an action brought to recover damages for libel will not he upheld where the libelous publication was based upon allegations of fact which ought to have been known to the defendant before the publication was made, and the examination is sought in order that the defendant may determine therefrom whether he will be able to answer that the libel published was true.
    Appeal by the defendants, William T. Baker and Thomas F. Baker, from an order of the Supreme Court made at Kings County Special Term and entered in the office of the clerk of Kings county on the 10th day of December, 1892, vacating an order granted by a justice of the Supreme Court on the 11th day of November, 1892, for the examination of the plaintiff before tidal.
    The action was brought' to recover damages for the publication, by the defendants in a newspaper of which they were the proprietors, of a libelous article concerning the plaintiff.
    The affidavit made by the defendants, on which the order for the examination, pursuant to section 8Y3 of the Code of Civil Procedure, was granted, after detailing the prior steps in the action and setting forth the alleged libelous article, was as follows:
    “ That the defendants are advised by their counsel that if the matters set forth in said alleged libel are true, the fact that they are true would constitute a good defense to the plaintiff’s complaint, and that if said matters are true, the defendants desire to plead the same as the defense herein.
    “ That none of the facts or allegations contained in said alleged libelous matter are within the defendants’ knowledge, and the fact as to whether said allegations or either of them are true or not cannot be obtained by the defendants except upon an examination of the plaintiff herein.
    “ That said alleged libelous matter is claimed by the plaintiff or her attorney to have been published in Euiton county, N..Y., and all the alleged facts therein contained are so claimed to have taken place in said Fulton county, N. Y.

      “ That the defendants reside at the city of Utica, N. Y., have no pei’sonal acquaintance with the plaintiff, and have no knowledge whatever of the alleged facts or the truth or falsity of the alleged facts contained in said alleged libelous matter, and the defendants-have endeavored by diligent inquiry from persons living in said Fulton county to ascertain the truth or falsity of the same, and have been unable to ascertain whether the same are true or false.
    “ That the defendants have not prepared or made their answer and are unable so to do without first examining the plaintiff to ascertain whether or not the alleged facts set forth in said alleged libelous matter are true.
    “ That the name of the plaintiff in this action is Leonora S. Gray, whose residence, as deponents are informed and believe, is somewhere in the city of Brooklyn, N. Y.; that the plaintiff has appeared by her attorney, David J. Newland, Esq., whose office address is 121 Nassau street, New York city; that the nature of the defense that the defendants desired to interpose is a general denial and the truth of the alleged libelous matter if they shall be able to interpose such defense.
    “ That the testimony of the plaintiff is material and necessary for the defendants herein to prepare their answer herein before trial, and the defendants cannot prepare their answer herein and set forth the defense above stated without first examining the plaintiff.

      “ That no previous application has ever been made for the relief asked herein.”

      Henry F. c& James Qouype, for the appellants.

      Hamid J. Newla/nd, for tlie respondent.
   Barnard, P. J.:

Tbe papers show that the defendants published of and concerning the plaintiff, very injurious charges and imputations affecting her character for chastity. The publication is based upon allegations of fact which ought to have been known to the defendants before the publication was made. The defendants seek to examine the plaintiff before answer, so as to determine from her examination whether the defendants will be able to answer that the libel published was true.

The case of Miller v. Brooks (48 N. Y. St. Repr. 146) is a decisive authority against upholding án order for such purpose. The court in that case upheld an order vacating an order for the examination of a plaintiff before answer.

The order appealed from should be affirmed, with costs and disbursements.

Pratt, J., concurred.

Order affirmed, with costs and disbursements.


text:
    The People of the State of New York, Respondents, v. Clara M. Underhill and William J. Underhill, Appellants.

      Tillage sir-eet— dedication and acceptance — obstruction.

    The acceptance of tlie dedication of a village street, designated on a map made and filed by the owner of the land and in reference to which lots have been sold, may be inferred frcm the facts that the village trustees put up the map name at the corner of the street, worked a part of it and put water and lights upon it so far as built upon, and made a map for a system of sewers and included the street among the public highways of the village.
    Where a street has been dedicated to the public by being designated on a map made and filed by the owner of the land and by which he has sold adjacent lots and has been accepted as a village street, and although not made a good street for public travel, has been in constant use by pedestrians and has never ceased to be used in its whole width, the owner of an adjacent lot, who is bound by the map and who bought while the street was so used, is guilty of obstructing a highway if he shuts up half the width of the street in front of his lot.

      Appeal by the defendants, Clara JL Underhill • and William J. Underhill, from a judgment of conviction of the Court of Sessions. of Westchester county, rendered on the 29th day of August, 1891, upon a verdict declaring the defendants guilty of the crime of maintaining a public nuisance in obstructing a public highway in the village of Sing Sing.

      Oalvim, Frost, for the appellants.

      W. P. Platt, Dist/rict Attorney, for the respondents.
   Barnard, P. J.:

In 1859 the People of the State of New York owned lands adjacent to the Sing Sing prison. By chapter 470 of the laws of that year, the Legislature authorized a sale of a portion of this land and a map to be made of the portion to be sold. The authorities of the State made a map of the lands, divided them into lots, and designated streets thereon. The map was filed and the lands sold with reference to this map. Houses have been built upon the street, but it has never been made a good street for public travel. As between the persons who have purchased the lots on the street and those who have bought with reference to the map, the street should, and must legally, remain an open street for its map width of fifty feet. The defendants, who are bound by the plan, have shut up one-half of the street so far as it adjoins their lot on the avenue which crosses the termination of Lafayette avenue, the street in question. The proof of dedication of Lafayette avenue is complete. The State so called it on the map by which they sold. The authorities had power to open the street so far as to bind all purchasers. A highway must be accepted and this is the debatable question in the case. There is no formal resolution by the village of Sing Sing, but an acceptance may be inferred from other proof. The trustees put up the map name of Lafayette avenue at the corner of the street. The trustees worked the street for some 350 feet and put water and lights upon it so far as the houses were built upon it. The trustees made a map for a system of sewers and this Lafayette avenue was included among the public highways of the village. This evidence uncontradicted is sufficient to uphold the verdict of the jury that the street was accepted. There is no proof to show a revocation of the dedication. The village did not proceed very fast in improving the whole street; but the travel over it by pedestrians was frequent and constant. The defendant bought in 1889 and his grantor in 1886. The road was used when they bought and has never ceased to be used in its whole width so far as needed, until the defendants fenced in half of it.

The conyiction and judgment should be affirmed.

Pratt, J., concurred.

Conviction and judgment affirmed.


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    Emily S. Barry, Respondent, v. Daniel T. Smith, Appellant.

      Xcmdlord and tenant — agreement by a quarry-worker to pay the landowner a specified pa/i't of the proceeds of the 'stone produced — summao'y proceedings for - dispossession — thirty days’ notice.

    The relation of landlord and tenant, under a tenancy at will, with a money rent, is created, within the meaning of the provisions of the Code of Civil Procedure in relation to summary proceedings for the dispossession of tenants, by an agreement between the owner .of land and the worker of a quarry thereon, whereby the quarry worker takes the stone produced under an obligation to pay a specified part of the proceeds thereof as rent to the landowner.

      Quaere, whether an occupancy on shares, without a term named in the agreement, can be terminated by a thirty days’ notice.
    Appeal by the defendant, Daniel T. Smith, from a final order of the county judge of Rockland county, entered in the office of the clerk of that county on the 7th day of November, 1892, awarding to the petitioner the possession of the premises described in the petition in a proceeding for the summary dispossession óf a tenant.
    The petition was as follows, omitting the particular description of the premises:
    “To Hon. George W. "Weiant,
    “ Cowivby Judge of Rockland Country.

      “ The subscriber applies for process and proceedings to remove Daniel T. Smith, the tenant and occupant of the premises hereinafter described, on the grounds set forth in the following petition.
    “ Dated September 27th, 1892. EMILY S. BARRY.

      “ State of New York, 1
    “ Ootmty of Rooldcmd. J
    “ The petition of Emily S. Barry respectfully alleges and shows: that on or about the 25th day of November, 1885, your petitioner let and rented unto Daniel T. Smith, during the will and pleasure of your petitioner, a lot of land situated in the town of Orangetown, in the said County of Rockland, on the west side of the public road, leading from Nyack to Piermont, and more particularly described as follows, * * * and that the said Daniel T. Smith held and occupied the said premises as the tenant at will of your petitioner until the expiration of such tenancy as hereinafter mentioned.
    “ And your petitioner further alleges that she caused notice in ■.writing to be served on the said Daniel T. Smith, which was served on him personally by delivering the said notice to him and leaving the same with him on the 29th day of July, 1892, requiring the said Daniel T. Smith to remove from the said premises on or before the first day of September, 1892, that the time within which the said Daniel T. Smith was required so to remove has expired, and that the said Daniel T. Smith holds over and continues in possession of said premises after the expiration of such time without the permission of your petitioner, his landlord.
    “ Therefore, your petitioner prays for a final order to remove the said Daniel T. Smith from said premises and your petitioner will ever pray.
    “Dated Nyack, N. Y., September 2'Jth, 1892.
    “EMILY S. BARRY.”

      John J. Mead, for the appellant.

      William JE. Gowdey, for the respondent.
   Barnard, P. J.:

The plaintiff is the owner of a piece of land upon which there is a stone quarry. The defendant at first worked the quarry at half wages, and the product to be equally divided. This arrangement was changed intd one by which the defendant should return to the owner one-fifth of the proceeds. The stones were sold by defendant and the proceeds collected by him, and the stones belonged to the defendant, with an obligation to pay one-fifth to the' landlord. Tbe only controversy is, therefore, one of technical terms. The plaintiff and her witness say that it was mentioned that the one-fifth proceeds was for rent. The defendant says the same, except that the term “ rent ” was not used. The question whether the occupancy was under a technical relation of landlord and tenant was very much debated, and the decisions did not entirely harmonize. The question is now set at rest by the act of the Legislature. By section 2232 of the Code, occupancy on shares comes within the act for summary dispossession of tenants. Under this section, such a tenancy exists as can be reached under the act to dispossess tenants who fail to pay rent, or who continue after their term has expired. The Code also provides that a tenancy at will may be terminated by dispossession of the tenant if he hold over after the termination of his notice to quit. The evidence is so clear that the letting was for rent and not for a share, but was only limited to one-fifth by way of arriving at a sum, that the question whether an occupancy on shares without a term named in the agreement can be terminated by the thirty days’ notice, need not be decided.

If it was a money rent which was received, the case was made out for dispossession, and the judgment should be affirmed, with costs.

Pratt, J., concurred.

Judgment affirmed, with costs.


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    Franklin D. Newton, Appellant, v. Gertrude E. Lee and Others, Respondents.

      Action by the assignee of a claim — damages for a breach of contract by the plaintiff’s assignor — a/oailable to a surety of the pa/rty damaged, as a set-off, although not a counterclaim, in extinguishment of the plaintiff’s claim.

    In an action brought by the assignee of a claim, to recover the value of goods alleged to have been sold by the plaintiff’s assignor to the defendants, the answer, as a separate defense, denied that the sale was made to the defendants, but stated that it was made to a third party, for whom the defendants were sureties only, and alleged a breach of the contract out of which the plaintiff’s claim arose, on the part of the plaintiffs assignor, existing at the time of the assignment, and asked to recoup the damages for such breach as far as should be necessary to extinguish the plaintiffs claim.

      Held, that this presented a defense which was good to the extent of the entire extinguishment of the assigned claim, if the proof of damages was sufficient.

      Appeal by tbe plaintiff, Franklin D El ewton, from an interlocutory judgment of tbe Supreme Court, entered in tbe office of tbe clerk of Queens county on tbe 26th day of January, 1893, on a decision rendered at Special Term, overruling a demurrer of tbe plaintiff to a part of tbe answer.
    Tbe interlocutory judgment gave leave to tbe plaintiff to serve a reply, if be so elect; that part of .the judgment is not appealed from.
    Tbe demurrer was as follows:
    “ Tbe plaintiff demurs to tbe counterclaim and defense consisting of new matter contained in tbe answer, namely, that part thereof alleged in the paragraph numbered II., and to tbe whole of such paragraph, upon tbe ground that it is insufficient in law upon the face thereof.
    “He further demurs to tbe said counterclaim upon which the defendants demand affirmative judgment upon the grounds:
    “ 1. That tbe counterclaim is not of tbe character specified in. section 501 of tbe Code of Civil Procedure, in that tbe allegations, thereof do not show it to be a cause of action against tbe plaintiff or tbe person whom be represents, and in favor of tbe defendants.
    “ 2. That the said counterclaim does not state facts sufficient to' constitute a cause of action.”
    Tbe following stipulation was executed by tbe defendants’ attorneys:
    “ It is hereby stipulated and agreed that tbe defense contained in tbe answer of tbe defendants herein, namely, that part thereof alleged in the paragraph numbered two, and to which the plaintiff herein has demurred, is not a counterclaim or a statement of any new matter constituting a counterclaim, as defined or intended under tbe Code of Civil Procedure.
    “This stipulation is made upon tbe condition that tbe said' demurrer of tbe plaintiff herein be overruled.”

      Nelson S. Spencer, for tbe appellant.

      James W. Perry, for tbe respondents.
   Barnard, P. J.:

Tbe complaint states that certain articles of personal property were sold and delivered by tbe Naugatuck Malleable Iron Company to the defendants; that the bill for the value of the same is unpaid, and that the company has assigned the claim to the plaintiff. The defendants deny the sale, the value claimed and the assignment to the plaintiff. The answer then proceeds to make a distinct and separate defense to the effect and purport that the sale was made to the American Bit Brace Company, and not with the defendants. That the American Bit Brace Company, on the 13th day of July, 1892, made an order for castings to be made by the Naugatuck Malleable Iron Company, which, that company failed to execute and thereby caused great loss to the American Bit Brace Company, and the defendants ask to recoup, set-off and counterclaim this damage against the plaintiff’s claim. The distinct and separate defense further states that the defendants were only sureties for the payment of the account of the American Bit Brace Company to the Naugatuck company. The separate answer states a clear case where the counterclaim existing against the Naugatuck company at the time of the assignment should be available to destroy the claim assigned to the plaintiff as. far as it was to go, or, as stated in the demand for judgment, as far “as shall be necessary to extinguish the plaintiff’s demand.” The demurrer was properly overruled. (Code, § 502, subd. 1; Baker v. Hotchkiss, 91 N. Y. 395.)

The plaintiff took the contract with all defenses against the assignor for the breach of the contract out of which the claim arose, and the defense is good so far as the entire extinguishment of the assigned claim if the proof of damages is sufficient. No personal claim is made against the plaintiff. (Bates v. Rosekrans, 31 N. Y. 409.)

The judgment should be affirmed, with costs.

Pratt, J., concurred.

Judgment affirmed, with costs.


author: Dykman, J.:

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    Augustus Knox, Appellant, v. The New York, Lake Erie and Western Railroad Company, Respondent.

      Negligence — a raib’oad hr alternan injured by timber loaded on a passing train coming loose ■ — -an accident impossible to be anticipated.

    On the trial of an action brought against a railroad company by-a brakeman to recover the damages resulting from a personal injury received in the employment of the company, the evidence was to the effect that the plaintiff was riding in the caboose of a freight train, in his regular service, and was injured by a crosspiece or “bolster” (which was placed on the top of lumber on a car of a passing train, and supported pieces of timber longer than a single car) coming loose and being forced into the caboose; that the use of these bolsters was a usual and proper way of loading long timbers, to afford play on curves; that the lumber cars were in good order and the timber properly loaded thereon, and that it had ridden more than 100 miles in safety; that the timber had been inspected shortly before reaching the place of the accident and was found to be secure, and that it remained so until within a few rods of the accident.
    On appeal from a judgment dismissing the complaint,
    Held, that the evidence showed that the injury was the result of an accident which could not have been anticipated; and was not chargeable to negligence, and hence, that the complaint was properly dismissed.
    One witness said he thought there were too many crosspieces on the lumber cars, that they were too long for the cars, and liable to work out.

      Held, that such an opinion was insufficient to sustain a verdict for the plaintiff.
    Appeal by tbe plaintiff, Augustus Knox, from a judgment of tbe Supreme. Court in favor of tbe defendant, entered in tbe office of tbe clerk of Orange county on tbe 26tli day of January, 1885, upon a dismissal of tbe complaint at the 'Orange Circuit.

      O. P. Howell, for the appellant.

      Lewis E. Carr, for the respondent.
   Dykman, J.:

This is an appeal from a judgment dismissing the complaint of tbe plaintiff at the close of tbe testimony on his part upon tbe trial.

Tbe action is for tbe recovery of damages for personal injuries. Tbe plaintiff was in the service of tbe defendant as a brakeman and oilman. On tbe day ©f tbe accident be was upon a freight train going west, in bis regular service. ITe was in tbe caboose at tbe rear of tbe train, and between Otisville and Howels his train met a freight train eastward bound, and on the left of his train. These trains met on a curve to the right going west, and to the left going ■east.

The cars in the train going east were loaded, and among them were two cars loaded with lumber and timber of different lengths.

The short lumber was loaded on each car, and on the top were long timbers, longer than either car, and they extended from one car to the -other, resting partly upon both. Upon the top of the short timber on each car a piece of timber called a bolster was laid crosswise of the car. The office of the bolsters was to enable the long timbera to yield to the motion of the two cars without disarranging the timber below, as they rounded the curves of the railroad. Upon each side of the two cars there were three or four stakes set in pockets, extending above the top of the lumber, and across each car, above the lumber, there were two or more stay boards nailed to the stakes on each side.

These lumber cars were loaded at Lanesborough, and came west over the Delaware division of the railroad over 100 miles. They were examined at Port Jervis by the conductor, and found to be in good order, and the lumber and timber continued in its place until the trains met, when about ten cars’ length from the •caboose in which the plaintiff was riding, the bolster on the forward •car of the two worked out, struck the caboose, broke three of the •stakes on the forward car, and broke the stay boards from their fastenings, and was forced into the caboose, struck the plaintiff, and inflicted the injuries for which he sues.

It is to be observed at the outset that there is no proof of defects, imperfection or insufficiency in these lumber cars or any of their appendages, or of a failure on the part of the company to provide a proper system and competent men for the inspection of the cars .after they were loaded, and there is no point made by the appellant on this appeal respecting the absence of such system or such men.

It does appear, however, that these lumber cars were inspected -at Port Jervis.

There was proof that the cars were properly loaded and in the usual manner, although one witness said he thought there were too many crosspieces, and that they were too long for the cars, and liable to work out.

Sncli an opinion was insufficient to sustain a verdict for the plaintiff.

The case, therefore, stands thus: The cars were safe and free from defects and imperfections. There was no proof of failure to provide a suitable system of inspection and competent agents to make the same. Presumptions of negligence cannot be indulged to impose liability. It must be established by competent evidence, produced by the plaintiff in all actions of this character.

The failure to detect the error in loading the cars, if there was any, and the- failure to rectify the mistake, was the negligence of a fellow servant, and not the fault of the defendant.

Our examination has failed to detect any negligence on the part of any one. The cars were in good order, the timber was properly loaded, and rode more than 100 miles in safety. It was inspected at Port Jervis, and found to be secure and unmoved, and remained so until within a few rods of the accident, when one of the bolsters worked loose while the train was rounding a curve.

The device of a bolster to afford play room for the long timbers as the cars went round the curves on the road, was evidently a practical idea, and all the witnesses say it was usual and proper.

The injury to the plaintiff was, therefore, the result of an accident which could not have been anticipated, and cannot be charged to negligence.

The judgment should, therefore, be affirmed, with costs.

Barnard, P, J., and Pratt, J., concurred.

Judgment affirmed, with costs.


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    In the Matter of the Application of John Sterling Drake, Relator for a Writ of Certiorari to the Board of Sewer Commissioners of the Village of Port Richmond.

      Construction of sewers in incorporated villages — petition for a poi'tion of an already rejected general system — chapter 375 of 1889, chapter 315 of 1891.
    When a proceeding ior the construction, upon a particular street, of a sewer (which has been included in a general sewer system which has been submitted to the electors of a village and rejected) is instituted by a petition under section 8 of chapter 375 of the Laws of 1889, as amended hy chapter 316 of the Laws of 1891, the board of sewer commissioners is obliged to either grant or refuse the prayer of the petition; it is without power or jurisdiction to go beyond the petition and provide for the construction of a sewer upon any other or greater portion of the general system than that asked for in the petition.
    The ownership of the landowners by whom such a petition is required to be signed must be upon the street through which they desire fche sewer to be constructed:
    When a sewer is constructed under a petition made under said section 8, the expense therefor cannot be provided ''for by the issuance of certificates of indebtedness by the board of sewer commissioners under section 10 of the act of 1889, but must be collected by an assessment upon the property specially benefited, as prescribed by section 8 of the act of 1891.
    Certiorari to review the action of the Board of Sewer Commissioners of tlie village of Port Richmond, in tbe county of Richmond. The writ was issued by the clerk of Richmond county on the éth day of January, 1893, upon an order to that effect made at a Special Term of the Supreme Court on the 31st day of December, 1892, upon the application of John Sterling Drake.

      George Tiffcmy, for the relator.

      John Croak, for the respondent.
   Dykman, J.:

This is a certiorari to the board of sewer commissioners of the village of Port Richmond on Staten Island to review their action in relation to the construction of certain sewers in that village.

Boards of sewer commissioners in the incorporated villages of this State are organized and their powers and duties are defined by chapter 3J5 of the Laws of 1889, and chapter 316 of the Laws of 1891, amendatory thereof.

Under those statutes the boards of sewer commissioners derive authority to construct sewei’s in two modes, or in other words, those statutes specify two methods by which the boards of commissioners of sewers obtain authority for the construction of sewers.

One by a special election for the purpose of determining by a vote of the electors whether sewers shall be constructed according to a plan proposed by the board, and the other by a petition.

As the proceedings under review were instituted by the latter method, it will be unnecessary to examine or discuss the former further than to say that a general plan of sewerage was submitted to the people at such an election and rejected.

Subsequent to such rejection a petition, signed by the owners of more than one-half of the lands .fronting on more than 500 lineal feet of South avenue, one of the public streets of the village through which a sewer was projected on the plan of the sewerage system of the village which was rejected, was presented to the board of sewer commissioners, requesting the board to construct a sewer through South avenue from the rapid transit railroad running north to Newark bay.

Thereupon the board proceeded in the manner specified in section 8 of the statute in respect to notices and hearing persons in favor of and against the construction of that portion of the sewer system, and thereafter determined to construct a sewer not only through South avenue, but also through Arlington place and Arlington avenue. To provide funds for the payment for the sewers the board issued certificates of indebtedness.

It is now^ insisted by the relator that the board has exceeded its jurisdiction, and that it had no authority to construct a sewer except in South avenue.

After the rejection of the general plan by the people the board was destitute of authority to construct a sewer, until it was set in motion by a petition under section 8.

That section as amended provided that whenever a petition should be presented to the board signed by the owners of at least 500 lineal feet of any of the lands fronting on any street, lane or alley through which a sewer was projected on the plan of the sewerage system of such village for the construction thereof, to be paid for wholly by the owners of the lands specially benefited, then the board should give notice in a certain manner specified of a time and place when the board would meet and hear persons interested for and against the construction of such portion of the sewer system.

At such meeting the board was required to take proof as to the persons signing the petition being the owners of a sufficient quantity of lands fronting on said street as therein required, and their conclusion upon that question was made final. If after such hearing the board determined to construct such portion of the system of sewerage they were to proceed and do so.

The question is whether the board could do more under the petition than construct a sewer in South avenue, and that is to be determined by a construction or section 8. as amended.

The section itself is not free Irom obscurity, but a general view of its object and the office it was designed to perforin renders its meaning and intention reasonably certain

Its purpose was to provide a method by which the property owners upon a street could procure the construction of a sewer therein, disconnected from the general plan

Two contingencies might have been m the contemplation of the lawmakers, either that the general pian might be rejected as it was, or the growth of the village might build up new streets in which sewers would be necessary.

In either case the petitioners wouid ask tor what they wanted, and the board, in its action thereon, would be confined to the prayer of the petition, either to grant or refuse it, and wouid be without power or jurisdiction to do more than the petition requested.

Upon general principles, the petition lies at the foundation of the proceedings, and is the basis of the jurisdiction of the board.

Moreover, the language of the section plainly contemplates such restriction. The notice required is to be given to the owners of land fronting on such portion of the street as the petition describes, and the hearing is confined to persons interested in such portion of the sewer system, meaning evidently that portion described in the petition. Then, again, if the board determines to construct such portion of the system of sewerage, it shall do so, meaning always by the word such ” the portion described in the petition.

Again, the statute requires a petition from the owners of land fronting upon the street through which a sewer has been projected, and the fair inference is that their ownership must be upon the street through which they desire the sewer to run.

Upon any other construction, the owners of 500 feet upon any street might defeat the intention of the voters, and the board might construct sewers in any other street, contrary to the .wishes of tire people, of their own volition, without request from any quarter.

In short, the board has no power or discretion to construct sewers of its own volition, and when it ia set in motion, it can proceed no further than its authority extends.

The last clause of section 8 applies only to the case of a petition for the construction of a sewer through different streets, and has no application to this case.

The question respecting the issuance of certificates to pay for this sewer is by no means free from difficulty.

The first part of section 10 of the original act reads as follows: “ For the providing of funds for the payment of the expenses authorized by this act, and for the construction and completion of such system of sewerage in any .village, the board of sewer commissioners thereof is hereby authorized and empowered to issue its certificates of indebtedness or bonds from time to time, and to pledge the faith and credit of said village for the payment of work, material furnished, lands taken, and other expenses of said work, * * * »

We think that provision was intended to apply only to the execution and completion of the general system of sewerage, which w;as rejected by this village, and that the expenses of constructing a sewer under a petition are to be collected under the following provision of section 8 of the amendatory act: “ If, after hearing had in accordance with such notice, the said board shall determine to construct such portion of said system of sewerage, the said board shall proceed to enter into contracts therefor in the manner-prescribed by the sixth section of this act, and to apportion and assess the expenses thereof upon the property specially benefited thereby in like manner and with like effect as herein provided in the seventh section of this act.”

This view seems to harmonize with and give effect to the following language in the fore part of section 8 : “To be paid for wholly by the owners of lands specially benefited.” The language refers to the construction of the sewer prayed for in the petition, and the section plainly contemplates its incorporation into the petition for such construction, but' it was not so incorporated in the petition in this case.

In this view, the issuance of certificates was unauthorized, and the proceedings of the board were irregular and unauthorized and should be reversed.

Barnard, P. J., conculTed.

Proceedings and order of the commissioners reversed.


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    Lucy S. Morrison, as Administratrix, etc., of Samuel H. Morrison, Deceased, Plaintiff, v. The Metropolitan Telephone and Telegraph Company, Defendant.

      Death earned by negligence — open elevator shaft.

    When the owner of a building operates an elevator therein for the benefit of persons having business in the building, he is required to exercise due care for their safety and is liable for the negligence of his employees in the operation of the elevator.
    On the trial of an action brought to recover damages for the death of a person alleged tahave been caused by the defendant’s negligence, the evidence was to. the effect that a passenger elevato'r in the defendant’s building, in working order except as to its signal apparatus, was stopped above the ground floor while the signal apparatus was being repaired, with plenty of artificial light about . the elevator; the door to the shaft on the ground floor was open and a man was stationed there to pass in tools and tc guard the doorway; the deceased, a mail carrier, entered the building on his rounds to distribute mail through the building, paused a few seconds to assort the mail, and then rushed to the shaft door, crowded past the man standing in the docuway, fell down the shaft and received injuries from which he died; the man at the shaft door gave no warning and made no resistance against, the passage of the deceased, and it did not appear that the latter had any means of knowing why the man was there.
    The plaintiff was nonsuited.

      Held, that the case should have been submitted to the jury.
    Motion by the plaintiff for a new trial on an exception taken by the plaintiff. Lncy S. Morrison, as administratrix, etc., of Samuel H. Morrison, deceased, to the ruling of the court at the Kings County Circuit in dismissing the complaint at the close of the testimony, ordered to be heard at the General Term in the first instance by an order, made and entered on the 28th day of March, 1892.

      Thomas E. Pearsall, for the plaintiff.

      Burton N. Harrison, for the defendant.
   Dykman, J.:

This is an action under the statute to recover damages for the death of the plaintiff’s intestate.

After the testimony was closed on both sides at the trial the complaint of the plaintiff was dismissed and the exceptions were directed to be heard at the General Term in the first instance.

The. intestate of the plaintiff met his death by falling down an elevator shaft in the building of the defendant in the city of New York while the elevator was above the floor.

The elevator itself was in working order, but an instrument or apparatus called the buzzer, used like an electric bell to make signals, was undergoing repair.

An assistant of the man who was making the repairs to the buzzer, or putting it in order, stood in the doorway to pass in the necessary tools and also to guard the door, which was necessarily kept open, or partly so.

. The deceased man was a mail carrier, and as he entered the first floor of the building he paused for a few seconds to assort the letters which he was to deliver in the building, and then he rushed to the door of the elevator shaft, shoved or crowded past the man who was standing in the doorway and fell down the shaft and received the injuries which resulted in his death. The' case is near the border line and by no means free from difficulty.

In the first place the appellant is entitled to the benefit of every inference which can legitimately be drawn in her favor from the facts and circumstances disclosed upon the trial, because she may assume here that the jury would have made such deduction.

Further, if the facts and circumstances be such that the inferences to be drawn from them are not certain and where different minds may reach dissimilar conclusions, and a process of reasoning is necessary to determine whether negligence is to be attributed to a party, it is for the jury to make the deduction. (Hart v. Hudson River Bridge Co., 80 N. Y. 622.)

Equally well settled is the rule that the plaintiff in actions like this must prove that death was caused solely by the negligence of the defendant, and that the want of care on the part of the deceased in no way made any contribution to the result, and the two points must be established by competent proof, and must not be left to speculation. The plaintiff has the burden upon the whole case. (Cordell v. N. Y. C. & H. R. R. R. Co., 75 N. Y. 332.)

“ It is not enough to authorize the submission of a question as one of fact to a jury that there is some evidence. A scintilla of evidence, or a mere surmise that there may have been negligence on the part of the defendant, would not justify the judge in leaving the case to the jury.” (Baulec v. N. Y. & Harlem R. R. Co., 59 N. Y. 356.)

Nor are judges any longer required to submit a question to the jury merely because some evidence has been introduced by the party having the burden of proof, unless the evidence be of such a character that it would warrant the jury in finding a verdict in favor of that party. (Dwight v. Ins. Co., 103 N. Y 359.)

These are plain rules and easily understood, but the great difficulty in a border case lies in their application.

The case of Tousey v. Roberts (114 N. Y. 312), is somewhat like this, but the facts were stronger against the defendant than they are here.

That was an elevator case. The husband of the plaintiff leased rooms in an apartment house owned by the defendant in the city of. New York, and the usual mode of reaching such apartments was by an elevator operated by the defendant for the accommodation of his tenants. The door through which the elevator car was entered from the ground floor could be opened from the outside.

, The plaintiff entered the hallway from the street door between six and seven o’clock on the 7th day of May, 1883. There was no artificial light in the hallway. As she approached the elevator the door was thrown open by a boy who had frequently .operated the elevator, but was not employed for that purpose. The plaintiff stepped through the door and, as the car was above, she fell to the bottom of the shaft and Avas injured.

In that case the court said as the defendant operated the elevator for the benefit of his tenants, he was required to exercise due care for their safety and Avas liable to them for the negligence of his employees in its operation. So it must be said here that as the defendant operated the elevator for the benefit of persons having business in the building, it Avas required to exercise due care for their safety and liable for the negligence of its employees in its operation.

As yet we have but little assistance from the adjudicated cases. In the Tousey case there were no artificial lights and the accident happened in the evening. Here the accident was about half-past one in the afternoon and there was plenty of artificial light, so much that the workmen could Avork inside of the shaft.

But there, as here, the door leading to the car in the shaft was open. There the court said that it was not, as matter of law, contributory negligence on the part of the plaintiff to pass through without stopping to look or listen.

But there the door was unguarded and here it was guarded. Does that change the case, if the guard was ineffectual ? The door was open or partly so, and a man stood in it to prevent persons from passing, but why he was there the deceased did not know and could not know. He saw the man and went past him, but had he any means of knowing why he was there, or whether he had any business there? The man gave no warning and made no resistance against the passage of the deceased. Might not the deceased have fairly believed either that the man had come from- the car or was about to enter it, or was standing there for no purpose ? He saw the door open or partly so, and the shaft well lighted as if every thing was regular, and he received no warning, saw no obstruction and met with no opposition.

If the man was placed there as a guard, it was his duty to use all proper means to prevent people from entering the doorway, and instead of performing that duty he did nothing but stand still and remain silent.

Was he not in that respect guilty of negligence which must be attributed to the defendant ?

The deceased man was doubtless in haste; all are in haste at midday in that great city, and it is assumed to be' no uncommon sight to see persons around the door of an elevator. It is not supposed to be a place of danger to be approached with caution, and if persons are standing at the door it would be no unnatural assumption to assume that they were either there for no purpose or were going in or coming out.

It must be borne in mind that this elevator was in full operation and the car had but just started on an upward trip.

Under all these circumstances we cannot say that the inferences to be drawn from them are certain and uncontrovertible and that different minds might not reach diverse conclusions.

We cannot say, as a matter of law, that the deceased had not the right to rely upon the appearances presented and act as he did, or that a verdict in favor of the plaintiff would be destitute of support.

It was, therefore, the peculiar province of the jury to draw the proper inferences, and not the court.

The verdict should, therefore, be set aside and a new trial granted, with costs to abide the event.

Pratt, J., concurred.

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


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    John T. Barnard, as Temporary Administrator, etc., of Ann E. Crouse, Deceased, Respondent, v. John F. Gantz and Others, Appellants.

      Amendment of a ease on appeal.

    Wien the statement: “ The foregoing cbntains all the evidence upon the trial,” has been omitted from a case on appeal through inadvertence, it is proper for the court at Special Term to permit its insertion for the purposes of a pend ing appeal to the Court of Appeals.
    Appeal by the defendants, John F. Gantz and others, from the order of the Supreme Court, made at the Kings County Special Term, and entered in the office of the clerk of Kings county on the 27th day of Jauuary, 1893, upon the motion of the plaintiff, sending the case on appeal herein back to the referee before whom the cause was tried, to certify thereto according to the fact, and directing the clerk to annex the order and the referee’s certificad to the judgment roll.

      L. E. Warren, for the appellants.

      E. B. Bm'nvm, for the respondent.
   Dykman, J.:

This is an appeal from an order made at Special Term directing the insertion in the printed case of-these words: “The foregoing contains all the evidence upon the trial.”

The cause has been tried before a referee, who dismissed the complaint, that judgment was reversed by the General Term, and now the defendants have appealed to the Court of Appeals.

The statement that the case contained all the . evidence was omitted through inadvertence, and the plaintiff is fearf nl that the omission may imperil his success in the Court of Appeals.

¥e think the granting of the order was a wise exercise of the discretion of the Special Term.

The rule requiring the statement is technical at best, and the courts will not permit technicalities to pi’evail over or stifle merits.

The order should be affirmed, with costs and disbursements.

Barnard, P. J., and Pratt, J., concurred.

Order affirmed, with costs and disbursements.


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    The People of the State of New York, Respondent, v. Georgianna Bishop, Appellant.

      Confessions, as evidence on criminal trials — section 395 of the Oode of Criminal Procedure.

    When the defendant in a criminal action testifies that a confession, admitted in evidence against him, was made by him by reasón of threats, and all the persons to whom the confession was made testify that no threats were employed, and the jury find the defendant guilty, and the case on appeal does not contain the judge’s charge, the General Term must assume that the charge correctly ¡stated the rules of law relating to confessions, and that the jury found the confession to have been voluntary.
    Under such circumstances, the conviction is not open to the objection that evidence was admitted of a confession “made under the influence of fear produced by threats,” and, therefore, within the prohibition of section 395 of the Oode of Criminal Procedure.
    Appeal by the defendant, Georgianna Bishop, from a judgment of the Court of Sessions of Dutchess county, rendered on the 22d day of November, 1892, convicting the defendant of the crime of arson in the third degree, and also from an order denying a motion for a new trial.

      Frank H. Cassidy, for the appellant.

      H. D. Hufout, District Attorney, for the respondent.
   Dykman, J.:

Tbis is an appeal from a judgment which convicts the defendant of the crime of arson in the third degree, for setting fire to and destroying the barn of Sydney Smith, in the town of Pine Plains, in Dutchess county.

It is stated in the points for the appellant that she is a young girl about fourteen years of age, and she is spoken of by the witnesses as a young girl.

The testimony to connect her with the crime consisted of her acknowledgments to several witnesses who testified that she admitted that she set fire to the barn, and this appeal is based upon the insufficiency of such confessions and the impropriety of their admission in evidence.

The rule of law upon the subject has now become statutory and is this : “ A confession of a defendant, whether in the course of judicial proceedings or to a private person, can be given in evidence against him, unless made under the influence of fear produced by threats-, or unless made upon a stipulation of the district attorney that he shall not be prosecuted therefor, but it is not sufficient to warrant his conviction Avithout additional proof that the crime charged has been committed.” (Code Crim. Pro. § 395.)

In this case the additional proof of the commission of the crime is abundant, and there is no claim that the district attorney made any stipulation on the subject.

The only question is whether the confession of the defendant was made under the influence of fear produced by threat?.

The defendant testified that the confession was made by reason of threats.

All the persons to whom the confessions were made testified that there were no threats employed.

The charge of the judge is not given in the case, and we must,, therefore, assume that it correctly.stated to the jury the rules of law relating to confessions which should gov.ern their deliberations.

Such being the case, and the jury having found the defendant guilty, we must further assume that the jury found the confessions to have been voluntarily made.

In this aspect of the case we cannot interfere with the conviction.

"Voluntary confessions when fairly proven constitute evidence' of a high character, and we find no evidence either of abuse or error.

The conviction should, therefore, be affirmed.

Barnard, P. J., and Pratt, J., concurred.

Conviction and judgment affirmed.


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    Frederick W. Helmke, Respondent, v. Henry I. Stetler, Appellant.

      Duty of an employer to wa/rn an employee of the vicious propensity of a horse furnished for the latter’s use.

    It is the duty of employers in all cases and under all circumstances to exercise care and prudence to protect their employees from exposure to unreasonable danger ; and in all cases where the danger is not apparent and visible, it is the duty of the employer to warn-his servant of the risk he is about to assume.
    An employer who knows that a horse owned by him is vicious is bound to give warning thereof to an employee for whose use the horse is furnished, and the omission of that duty will impose on the employer a liability for an injury inflicted by th,e horse upon the employee.
    Appeal by the defendant, Henry I. Stetler, from a judgment of the Supreme Court, entered in the office of the clerk of Rockland county on the 4th day of October, 1892, upon a verdict in favor of the plaintiff rendered at the Rockland Circuit, and from an order denying a motion for a new trial made upon the minutes.

      Abram A. Demawest, for the appellant.

      G. P. Hoffmcm, for the respondent.
   Dykman, J.:

This is an action for the recovery of damages resulting to the plaintiff from a kick of a horse.

The plaintiff was in the employ of the defendant as a foreman, upon his farm in Rockland county, and this horse was furnished to the plaintiff by the defendant to be used in the course of his business.

The testimony of the plaintiff was that while he was driving the animal along the road at a moderate rate of speed she suddenly kicked off the dashboard, and immediately gave another kick so high that her heels struck the knee of the plaintiff and inflicted upon him a very serious and dangerous injury. There was no dispute about these facts.

The plaintiff and another witness gave testimony which tended to show that the defendant knew that the same animal had kicked a a man before while he owned her.

The jury was carefully and correctly instructed respecting the law which controls the case by the trial judge and the plaintiff recovered a verdict of $1,000.

We must, therefore, assume that all the questions of fact were found in favor of the plaintiff, and that being the case this appeal cannot prevail.

This is an appeal from the judgment and order denying the motion for a new trial upon the minutes of the court.

It is the duty of employers in all cases and under all circumstances to exercise care and prudence to protect those in their employment from exposure to unreasonable danger.

In all cases where the danger is not apparent and visible, it is the ■duty of the employer to warn his servant of the risk he is about to assume.

That rule applied to this case required the defendant to inform the plaintiff of the vicious propensity of the horse which was furnished for his use, as the jury has found that such propensity was known to the defendant.

The defendant gave the plaintiff no such warning, as the jury must also have found under the charge of the trial judge.

That omission of duty was sufficient to impose liability upon the defendant for injury which resulted to the plaintiff from the kick of the horse.

If the defendant had informed the plaintiff of the vice of this animal, he could have exercised his discretion in respect to the acceptance of the service, and if he had accepted the position and ■consented to use her he would have been forewarned of his danger and conducted himself accordingly.

But without notice or warning he had the right to assume that the defendant had exercised proper care in the selection of the implements and agencies with which he was to prosecute his service, and being thus lulled into security he was unprepared for the sudden outbreak of violence which caused his injury.

These are familiar principles applicable to all cases of this character and require no reference to authority for their support.

The appeal cannot, therefore, prevail, and the judgment and, order must be affirmed, with costs.

Barnard, P. J., and Pratt, J., concurred.

Judgment affirmed, with costs.


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    Frederick W. Helmke, Respondent, v. Henry I. Stetler, Appellant.

      Vicious propensity of a horse — newly-discovered evidence.

    On a motion, by the defendant, for a new trial on the ground of newly-discovered evidence, in an action brought by an employee against his employer to recover , damages for an injury inflicted by a vicious horse furnished for the former’s use, the defendant submitted an affidavit made by a person who had been shown on the trial to have been kicked by the horse to the defendant’s knowledge, that the horse, while fighting with another horse, did kick the affiant, but that it was a slight kick and was attributable to the affiant’s carelessness.

      Held, that the effect of this testimony would be to further'show the vicious disposition of the horse, and, therefore, it furnished no ground for granting the defendant a new trial.
    Appeal by the defendant, Henry I. Stetler, from an order made on the léth day of February, 1893, by the justice of the Supreme Court before whom the case was tried at the Rockland Circuit, denying the defendant’s motion for a new trial on the ground of newly-discovered evidence.
    The trial had resulted in a verdict in favor of the plaintiff for $1,000 damages.

      Abram A. Demurest, for the appellant.

      G. P. Soffmun, for the respondent.
   Dykman, J.:

This is an appeal from an order denying a motion for a new trial upon newly-discovered evidence.

The action is for the recovery of damages resulting from the kick of a horse belonging to the defendant.

The plaintiff was in the employ of the defendant when he received the injury, and the action is based upon the vicious propensity of the animal.

The question of fact upon which the case would turn was well understood by the defendant and his counsel, for there were two trials of the action.

The affidavits upon which the motion is based are quite unsatisfactory, and it is by no means clear that the new testimony would produce a different result.

It was proved upon the trial that the defendant had knowledge that the horse had kicked Robert Byer, and now he makes an affidavit that the horse did kick him, but that it was a slight kick, and he attributes it to his carelessness.

His testimony, therefore, would prove the fact that the horse did kick him while it was fighting with another horse, and thus show that the vicious disposition of the animal induced it to kick men and fight with other horses.

The other affidavits are in many respects suspicious and inconsistent with the established facts. Our conclusion is that the affidavits are insufficient to justify a new trial, and that the order should be affirmed, with ten dollars costs and disbursements.

Barnard, P. J., and Pratt, J., concurred.

Order denying new trial on ground of newly-discovered evidence affirmed, with ten dollars costs and disbursements.


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    In the Matter of the Application of the Board of Health of the City of Yonkers, Respondent, to Punish John Copcutt, Appellant, for Contempt.

      Contempt of court — violation of an injunction obtained by a board of health — technical objections.

    On. the return of an order to show cause why a defendant should not be punished for contempt for having violated an injunction, obtained by the board of health of a city, forbidding him to draw off the waters of certain mill ponds below the level of the dams during the summer, the defendant objected that the moving papers were defective in that they were not entitled in the action in •which the injunction was granted, that the contempt proceeding was not instituted by the attorney of record for the plaintiff in such action, and that neither the original nor a copy of the injunction order had been served on him; the objections were overruled and an order made adjudging the defendant guilty of contempt.

      Held, that these technical objections were not well founded, and that the order should be affirmed, it appearing that the proof of the violation of the injunction was sufficient, and that previous to the institution of the contempt proceeding the defendant was notified of his violation of the injunction, but gave no heed thereto.
    Appeal by the defendant, John Copcutt, from an order made at the Westchester Special Term on the 2d day of December, 1892, upon the application of the Board of Health of the city of Yonkers, and entered in the office of the clerk of Westchester county, adjudging the defendant guilty of contempt of court, and punishing him by fine therefor.
    On the 8th day of July, 1891, an order to show cause, containing a temporary injunction restraining John Copcutt, his agents, servants and officers from drawing off the water from the mill ponds of the Nepperhan river, in the city of Yonkers, known as the first, fifth and sixth water powers, between the first day of May and the first day of November, so as to expose the surface of the ponds below the level of the dams, was obtained by the Board of Health of the city of Yonkers in an action then commenced in the Supreme Court, entitled The Board of Health of the City of Yonkers v. John Copcutt. That order to show cause was served upon Copcutt and was made returnable at the city of Poughkeepsie, before a justice of the Supreme Court, on the 10th day of July, 1891. On the return day of said order, after hearing counsel for the Board of Health in support of the application,to continue the injunction, and counsel for Copcutt in opposition thereto, the judge continued the injunction, and made it permanent pending the action.
    In the month of August, 1892, the Board or Health directed the city attorney of Yonkers to institute proceedings against Oopcutt for violating the terms of the injunction order. The city attorney thereupon wrote a letter to Oopcutt informing him that proceedings would be commenced unless he ceased violating the provisions of that order. On August 31, 1892, the Board of Health, through the city attorney, obtained an order to show cause why John Copcutt should not be punished for contempt for violating the terms of the injunction order.
    By this order to show cause, which, as well as the papers on which it was obtained, was entitled In the Matter of the Application of the Boa/i'd of Health to Pv/nish John Copcutt for Contempt, the present proceedings were instituted.
    Upon the hearing, counsel for Copcutt took three foimal objections to the proceedings, as follows: (1) That the moving papers
    are defective for that the same are not entitled in' the action in which the injunction was granted which was alleged to have been violated. (2) That Joseph F. Daly, Esq., is the attorney of record in said action, no attorney has been substituted in his place as such, and the proceedings herein were not instituted by him. (3) That the injunction order alleged to have been granted and violated, or a certified copy or any other copy thereof, has not been served upon the defendant or upon his attorneys in said action.
    The order appealed from, adjudging Copcutt guilty of contempt and punishing him therefor by a fine of fifty dollars, was thereupon made.

      Arthur J. Burns, for the appellant.

      James M. Hunt, for the respondent.
   Dykman, J.:

This is an appeal from an order of the Special Term adjudging John Copcutt guilty of contempt for violating an injunction of this court, and imposing a fine upon him for such violation.

The objections to the order are mostly technical, and but a very faint effort is made to deny the offense.

The proof of violation of the injunction is amply sufficient, and the technical objections are not well founded.

The defendant has manifested no disposition to yield obedience to the mandate of the court, although it related to a matter of the utmost importance to the public.

Previous to the institution of the proceedings to punish the defendant for contempt he was notified of his violation of the injunction, and informed that a cessation of his contumacy would secure immunity for the past, but he gave no heed to the notification.

If the process of the court is to be vindicated this order must be upheld.

The order should be affirmed, with costs.

Barnard, P. J., concurred; Pratt, J., not sitting.

Order affirmed, with costs and disbursements.


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    William F. Corwith, Plaintiff, v. Lawrence Barry and Others, Defendants; Patrick F. Craddock, a Defendant, Respondent; James P. Sloane, Purchaser, Appellant.

      Resale on mortgage foreclosure.

    A resale, under a judgment of foreclosure of a mortgage, held, to have been properly ordered on the application of a judgment creditor of the mortgagor, who, for the purpose of protecting his judgment, went to the place of the sale shortly before the hour fixed therefor, but departed before the sale took place, under a misapprehension tnat the sale had been adjourned.
    Appeal by James P. Sloane, purchaser, from an order of the County Court of Kings county, dated on the 21st day of January, 1893, and entered in the office of the clerk of that county, granting a motion of the defendant, Patrick F. Craddock, to set aside a foreclosure sale of mortgaged premises, and directing a resale.
    The applicant for the resale submitted the following affidavit in support of his motion:
    “ Patrick F. Craddock, being duly sworn, deposes and says that he is one of the defendants in the above-entitled action ; that he is a judgment creditor of the defendant, Lawrence Barry; that said judgment is for the sum of six hundred and seventy dollars; that said judgment was entered in the office of the Clerk of the County of Kings, on the 19th day of August, 1892. That this action is for the foreclosure of a mortgage on the premises known as No. Clay street, in the city of Brooklyn, owned by the defendant, Lawrence Barry ; that said mortgage is for the sum of three hundred dollars; that deponent was made a party to said action, and had notice of the proceedings and date of sale which was the 10th. day of November, 1892. That on said 10th day of November, 1892, deponent proceeded to No. 9 Willoughby street, Brooklyn, N. Y., the place designated in the notice of sale, to bid on said property; that said sale was advertised for 12 o’clock noon of that day. That at about 11:35 a. m., while deponent was waiting within fifty feet of No. 9 Willoughby street, for the hour of sale to arrive, Mr. Louis Corwith, brother of plaintiff, met him and told him that the sale was postponed until a later day. Deponent, relying on said statement, returned to his home.
    “Deponent further says that after he arrived home he was informed that the sale was held at the hour and time advertised in the notice, and that there was no one present at said sale other than the attorneys for plaintiff and one James P. Sloane, and that plaintiff’s attorneys bid five hundred and fifty dollars for said property, and said James P. Sloane bid five hundred and seventy-five dollars and received the property. ■
    “ Deponent further says that he is familiar with the value' of property in the neighborhood where this property is situate and knows the value of same, and that in his opinion said premises are worth about - twelve hundred dollars. Deponent further says that he would be willing had he been present at said sale to give as much as twelve hundred dollars for said property.
    “ Deponent further says that the price obtained for said mortgaged premises will barely pay the amount of the mortgage, and the expenses and deponent’s judgment will be lost, and that if a resale can be had the property will bring enough to satisfy both the mortgage and the judgment.”

      Thomas F Maguer, for the appellant.

      Jamies F. Quigley, for the respondent.
   Dykman, J.:

This is an appeal from an order of the County Court of Kings county, directing a resale of the property described in the complaint.

The action is for the foreclosure of a mortgage, and the sale was under the judgment thereon.

There was a misapprehension respecting the adjournment of the sale on the part of the judgment creditor, who was present to protect his judgment. Either the misinformation respecting the adjournment of the sale was the result of design or misinformation, and in either case it would be inequitable to permit the sale to stand.

The. order appealed from is just and should be affirmed, with ten dollars costs and disbursements.'

Barnard, P. J., and Pratt, J., concurred.

Judgment affirmed, with costs.