text:
    MARY E. McCOLLUM, as Administratrix of the Goods, etc., of WILLIAM S. McCOLLUM, Appellant, v. THE MUTUAL LIFE INSURANCE COMPANY OF NEW YORK, Respondent.

      Life insurance— defenses that the policy teas obtained, byfrcmd, and ofa.breaeh of warranty, a/)'e not inconsistent — election of remedies — evidence as to other insurance— written proof of the falsity of warranties calls for a decision by the court, upon a question of law.

    In an action brought to recover upon a policy of life insurance, a defense was interposed that the company, within two months after the issuing of the policy, had made a demand to rescind the'contract of insurance and offered to return to the insured, the premium which he had paid, upon the ground that the policy was obtained by fraud. A further defense was interposed of a breach of warranty in the application for the insurance.

      Held, that the defendant was not precluded from setting up the breach of warranty because of this attempted rescission of the original contract before the death of the insured or because of a refusal to pay the amount of insurance after his death to his personal representatives upon the ground that there was no contract of insurance outstanding for the reason that the same had been obtained by fraud.

      Brink v. Ilanover Mre Insurance Company (80 N. Y., 113) distinguished.
    That there was no such election of remedies on the part of the company as to determine the rights of the parties.

      National Life Insurance Company v. Minch (53 N. Y., 144) distinguished.

      In reply to the question, “Are you now insured in any other company?” the insured answered, “No.” It appeared that at the time he made this answer, lie held certificates of membership of insurance on his life for $8,000 in the Buffalo Life and Reserve Association, and for $2,500 in the Rochester Mutual Aid and Accident Association.

      Held, that the fact that such other life insurance was not in regular and authorized insurance companies, but was in aid and accident associations, did not make the answer a proper one.
    That the fact that the agent of the insurance company was told by the assured of the existence of these outstanding policies, and that the agent advised him that the question in the application did not refer to such associations, did not excuse or justify the answer, in view of the fact that the powers of the agent were expressly limited by the following notice printed on the back of the policy:
    “ Powers of Agents. No agent has power to bind the company by receiving any representations or information not contained in the application for this policy.” Ch'atta/n v. Metropolitan Insurance Company (80 N. Y., 281) distinguished.
    Where the proof, in regard to the falsity of the warranties contained in the application, is wholly in writing it imposes upon the court the duty of deciding the same as a matter of law, and precludes the submission of this question to the consideration of a jury.
    Appeal by the plaintiff from a judgment, entered in the office of the clerk of the county of Niagara on the 19th day of October, 1888, after a trial at the Niagara Circuit before the court and a jury, at which the court directed a verdict in favor of the defendant and ordered a judgment dismissing the complaint; and also from an order, entered in the Niagara county clerk’s office on the 29th day of October, 1888, denying the plaintiff’s motion for a new trial made upon the minutes of the court.

      Joel L. Walker, for the appellant.

      Eugene Gary and Robert Sewell, for the respondent.
   Macomber, J.:

This action is brought upon ten policies of life insurance of $5,000 each, issued by the defendant to William S. McCollum, December 22, 1885, the loss in each policy payable to his personal representatives.

The defenses are: (1.) Within two months after the issuing of the policies, and in the month of February, 1886, the defendant rescinded the contract of insurance and offered to return to the insured, the premium which he had paid upon each policy, upon the gi-ound that the policies were obtained by fraud. (2.) A breach of warranty in the application for such insurance, wherein the insured represented that he had no other insurance upon liis life at the time of the application for these policies. (3.) A breach of warranty in the application, in that he represented that he had never before been attended by any physician for sickness. (4.) That the insured committed suicide.

The attempt on the part of the company to rescind the contract of insurance in the month of February, 1886, was unsuccessful as a matter of negotiation, because the insured refused to accept the return of the premium and surrender the policies. "What the result of an action in equity, to accomplish the object sought would have been, it is not needful to pause to inquire. The several policies remained unrescinded and outstanding at the time of the death of the insured which was caused by a pistol shot on the 25th day of June, 1886.

It is claimed by the learned counsel for the appellant, that this attempted rescission of the original contract before the death of the insured, and a refusal to pay the amount of insurance after his death to his personal representatives upon the ground that there was no contract of insurance outstanding because the same had been obtained by fraud, precludes the setting up of the defense of a breach of warranty, both -in respect to the matter of previous life insurance and the matter of being attended by a physician. In this contention, we cannot concur with couilsel. This case is clearly distinguishable from that of Brink v. Hanover Fire Insurance Company (80 N. Y., 113) and other like cases. The ease before us, does not present a merely technical defense as did the case of Brink v. Hanover Fire Insurance Company (supra). The charge of fraud, under which it was attempted by the defendant to repudiate the ■contracts two months after the issuing of the policies, was not based upon any specified false of fraudulent representation or false warranty contained in the application, but arose from the conclusion arrived at by the company’s officers that, through certain false representations, the insured had been enabled to get a larger life insurance than he was able to carry, and that his purpose was to relieve his own financial embarrassment by making reclamation upon this company. 'There is nothing in the selection of the legal j>osition by the company so taken which would preclude it from setting up any substantial defense upon the merits. The claim that there is no outstanding-contract of insurance, but that the same had been rescinded for fraud, does not preclude the company from setting up a breach of warranty in case an action is brought upon the policy. There is no-election of remedies which determines the rights of any party, as was the case of The National Life Insurance Company v. Minch (53 N. Y., 144). We see nothing inconsistent, either as a matter of pleading or as a matter of substantial defense, in having denied the existence of the contract and the setting up of the special defenses-thereto growing out of a breach of warranty.

The insured answered “ No ” to the following question: “Are you now insured in any other company ? ” It was shown, that at the time he made this answer, he held certificates of membership of insurance on his life for $3,000 in the Buffalo Life and Reserve Association, and for $2,500 in the Rochester Mutual Aid and Accident Association. This question was material to the risk, and called for important information; of this there can be no question. It is argued, however, by appellant’s counsel, that such other life insurance was-not in the regular and authorized insurance companies, but was in aid and accident associations, and that insurance in such last-named companies was hot a breach of the warranty. But by chapter 175-of the Laws of 1883, section 5, such companies are unquestionably life insurance companies. They have been ’so treated uniformly by the courts. (Mayer v. Eq. Reserve Fund Life Assn., 42 Hun, 237; Sherman v. Commonwealth, 82 Ky., 102.)

It is insisted, however, on the part of the plaintiff, that the agent of the company was told by McCollum of the existence of these outstanding policies, and that the agent advised him that the question in'the application did not refer to such associations. From this it is-argued that the company itself is estopped to deny the correctness of the advice so given by the agent, and the case of Grattan v. Metropolitan Insurance Company (80 N. Y., 281) is cited as an authority upon that proposition. In that case, and in all other cases preceding and succeeding it, where the rule here sought to be enforced was enunciated, the agent was acting palpably within the-scope of his authority, and the company -was in each case charged with responsibility for his acts. In the case before us, the limitations of the powers of the agent were brought directly to the attention of the insured, for printed on the application signed by McCollum, and on the back of each of the policies, was the following conspicuous notice: “ Powers of agents. No agent has power to bind the company by receiving any representations or information not contained in the application for this policy.” The expression of opinion, therefore, of the agent that such prior insurance was not called for by the question, cannot justify the false answer made to the question put to the insured. (Chase v. Hamilton Ins. Co., 20 N. Y., 52.) Ye think that this alleged breach of warranty was established at the trial, and was a defense to the action.

The insured was also asked by a question contained in the application : “ Q. When attended by a physician ? ” “ Q. For what disease or ailment ? ” He answered these questions as follows: “ A. Never fo'r sickness.” These questions also called for important information which the insured was bound to give truthfully. This-answer was made in the application December 16,1885. There was-produced and put in evidence, an application of the deceased made to the Buffalo Life and Keserve Association, dated November 5,1885, six weeks previous to the application made to this defendant, in which were the following questions and answers: “ Q. How long since you Avere attended by a physician, or have professionally consulted one ?' A. Eight years ago. Q: For Avhat disease or ailment ? A. Tonsilitis. Q. Give the name and residence of physician? A. Dr. Talbot.” The absolute truth of the statement contained in the application made h> this defendant was warranted by the terms of the contract as follows: “ It is hereby declared and warranted, that all the statements and answers as above made are complete and true, and that they, together with this declaration and agreement, constitute an application to the-Mutual Life Insurance Company of New York for a policy of insurance, and ar.e offered as a consideration for the policy hereby applied for,” etc. No other evidence of the truth or falsity of the insured’s answer to these questions in the application to the defendant was given. Even if the question was immaterial to the risk, yet the company was entitled to a truthful answer to it, and any untrue statement would vitiate the policy. (Dwight v. Germania Life Ins. Co., 103 N. Y., 344; Foot v. Ǣtna Life Ins. Co., 61 id., 571; Cushman v. U. S. Life Ins. Co., 63 id., 404.)

It is argued, however, by counsel for the appellant, that tonsilitis is not a sickness within the meaning of McCollum’s answer in the application for these policies. It is shown, however, by the testimony of Dr. Eddy, that tonsilitis is an inflammation of the tonsils, called by the common term quinsy, and commonly results from a ■cold, and that a person who has had it is much more liable to have his throat affected by colds than he would otherwise be; that it is liable to make a man quite ill and is oftentimes an indication of a scrofulous tendency. No effort was made at the trial to prove that the deceased was not, in fact, as ill as serious tonsilitis might cause him to be. But the deceased himself, who was a medical man, •seems to have had no idea that tonsilitis was not a disease, for in the ■question put to him in his application to the Buffalo Life and Reserve Association he was asked when he was last attended by a physician, not for any mere ailment, but “ for what disease,” his answer was : Eight years ago; tonsilitis.”

The proof of these two false warranties being wholly in writing, imposed upon the court the duty of deciding the same as matters of law and precluded the court from submitting them to the consideration of the jury. (Dwight v. Germania Life Ins. Co., 103 N. Y., 342.) If we are right in these views, it becomes unnecessary to consider the evidence relating to the question whether or not McCollum committed suicide.

Judgment and order should be affirmed.

Barker, P. J., and Dwight, J.,-concurred.

Judgment and order affirmed.


source: Caselaw Access Project

author: Macomber, J.:

license: Public Domain

text:
    BENJAMIN H. DAVIS and Others, Respondents, v. JAMES D. HARRINGTON and CHARLES H. YOST, as Assignee of JAMES D. HARRINGTON, Appellants.

      What acts prior to an assignment for creditors constitute apa/rt thereof— the fact of purchasing goods and pledging them immediately prior to an assignment is to he-considered on the question of fraud.

    The acts of a debtor, immediately preceding and preparatory to an assignment for the benefit of creditors, are inseparable from the execution of the assignment itself, and must be deemed a part of the general purpose of the assignor.

      Zoos v. Wilkinson (110 N. Y., 195) distinguished.
    The fact that a debtor, immediately previous to the making of a general assignment for the benefit of creditors, buys a large quantity of diamonds which lie-pledges for money borrowed, to various persons at much less than their value, atid that he transfers a large quantity of his stock in trade in payment of a fictitious debt, is to be taken into consideration in determining the question as to whether the assignment is fraudulent or not.
    Appeal by tbe defendants from a judgment entered, upon the-decision of the. court upon a trial before the court without a jury, in the office of the clerk of the county of Monroe on the 8th day of May, 1889.
    The action was brought to set aside a general assignment made by the defendant James D. Harrington to the defendant Charles H. Yost, on the ground that it was made with the intent to defraud creditors. The court, at Special Term, found that the assignor purchased an extraordinary large quantity of diamonds and immediately thereafter, and just prior to the making of the assignment, pledged them for money borrowed by him; that immediately before the assignment the assignor fraudulently turned over to one Myers a. large quantity of goods in payment of a pretended debt due from him to said Myers, and that said goods were turned over to said Myers in preparation for said assignment, and that the assignment was made by said assignor with intent to delay, hinder and defraud, his creditors.

      Henry M. Hill, for the appellants.

      Hmid Ha/ys, for the respondents.
   Macomber, J.:

The principal contention on behalf of the appellants is that the findings of the learned trial judge, Nos. 0, 7 and 8, are unsupported by the evidence. These findings are, in brief, that shortly previous to the making of the assignment by the defendant Harrington to the defendant Yost, and in preparation thereof, Harrington bought a large quantity of diamonds which he pledged for money borrowed to various persons at much less than their value; that Harrington • also, just before making the assignment, disposed of large quantities ■of his stock of goods to one Myers, in payment of a pretended and fictitious debt from Harrington to Myers; that the assignment was made by the defendant Harrington and was received by the defendant Yost with the intent to hinder, delay and defraud Harrington’s creditors.

In respect to the sixth finding the argument is, that the evidence ■does not show, as such finding alleges, that, in preparation of such assignment, Harrington bought from persons other than the parties to this action about $7,000 worth of diamonds. This finding, as contained in the printed record, is incorrectly given, the result, doubtless, of careless copying. On examination of the original judgment-roll, which we have caused to be produced, it is ascertained that the gross amount of $7,000 includes the purchases from the plaintiff Davis, and is correct. This technical error in the finding, as printed in the case, is wholly unimportant, because even if it was .so contained in the decision as filed, it was not excepted to by the appellants, nor was there any request to the learned judge to find •differently upon the testimony.

"We have made a protracted examination of the printed record, and are not able to say that the learned judge at the trial has failed to follow a clear preponderance of the evidence adduced upon the main questions. A discussion of the evidence in detail would require more space than is commonly allotted to an opinion upon apj>eal from this class of cases. The plaintiffs assumed from the beginning, the ■duty of satisfying the judicial mind by a fair preponderance of the ■evidence, though not by demonstration, that fraud on the part of the assignor was designed and was actually perpetrated in his scheme to make large purchases of diamonds and to realize upon the same ■such moneys as he could obtain therefor, and then turn over to his assignee, the mere shell of his property. The claim that the assignor cannot be proceeded against by defrauded creditors, for the reason that whatever fraud had been accomplished was not in the assignment, but outside of it and preceding it, thus bringing himself within the imaginary protection of the case of Loos v. Wilkinson (110 N. Y., 195), is not tenable.

The defendant Harrington made a voluntary surrender of all of his tangible property and then resorted to the device of making an assignment for the benefit of creditors, so that his fraud could not be unearthed. This, as we held in the case of Manning v. Beck (7 N. Y. Supp., 215; S. C., 51 Hun, 102), was a fraud upon the act (Laws 1887, chap. 503), and could be defeated by a judgment-creditor. The evidence before us establishes, with reasonable certainty, the assignor’s fraudulent intent at the time of making the assignment. The well-ascertained facts established at the trial, are inconsistent with an honest intent on the part of the debtor to devote his property at the time of the assignment to a fair distribution among his honest creditors. The acts immediately preceding and necessarily leading up to the assignment are inseparable from the execution of the assignment itself, and must be deemed a part of the general fraudulent purpose of the assignor.

The judgment appealed from should be affirmed, with costs.

Barker, P. J., and Dwight, J., concurred.

Judgment affirmed, with costs.


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    HENRY E. NEAFIE, Respondent, v. THE MANUFACTURERS’ ACCIDENT INDEMNITY COMPANY OF THE UNITED STATES, Appellant.

      Insurance against accident — of an icepropi'ietor — when a pm'ty deliverring ice in person is covered thereby

    A policy of insurance against accident, contained the following note descriptive of the business of the .assured : “ Henry E. Neafie, of Canandaigua, county of Ontario, State of New York, by profession, occupation or employment an iceman (propr.), member of this company,” etc.

      Held,, that a claim by the insurance company that the assured, at the time of receiving the injuries was an ice deliverer only, and in a different class from an iceman who was tlie proprietor of a business, and that consequently the rate of indemnity was only live dollars per week, and not twenty dollars a week, which latter was the rate at which a person who was a proprietor of the ice business might be insured, could not be sustained.
    That the expression used in the policy covered not merely a proprietor who con ducted a general ice business by advice from his office, but also an iceman or a man who might be a deliverer of ice and be at the same time the owner and proprietor of such business.
    Appeal by the defendant from a judgment of the Ontario County Court, entered in the office of the clerk of the county of Ontario-on the 23d day of July, 1889, affirming a judgment rendered by a justice of the peace in the plaintiff’s favor for $154.28 damages and eight dollars and fifty-five cents costs.

      John J£. .Bean, for the appellant.

      Ji'. M. Morse, for the respondent.
   Macomber, J.:

This action is brought upon a policy of insurance against accidents, by which in case of personal injuries to the plaintiff the defendant shpuld pay him the sum of twenty dollars per week, provided such injuries produced total inability to attend to the employment or occupation or profession in which the insured was engaged.

The main contention made in behalf of the defendant against, payment of the twenty dollars a week during the time wffien the plaintiff was disabled from labor is, that he, at the time of receiving-the injuries, was an ice deliverer only, and in a different class from an iceman who was a proprietor of a business, and that, consequently, the rate of indemnity was only five dollars per week. The policy which was issued to the plaintiff, contains this language, descriptive-of the business of the plaintiff : “Henry E. Neafie, of Canandaigua, county of Ontario, State of New York, by profession, occupation or employment, an iceman (propr.), member of this company,” etc. Evidence was given that the rate, at which a person who was the proprietor of the ice business might be insured, was twenty dollars-a week, while in the class of a mere deliverer of ice, who was not a proprietor of the business, the extent was five dollars per week. The expression, however, which is used in the policy is not that of a mere proprietor who conducts a general ice business by advices from Ms office, but, on the contrary, it was that of an iceman, or a man who miglit be a deliverer of ice, and who was at the same time tbe owner or proprietor of such business. The plaintiff received the injuries wMle engaged in tbe manual duties pertaining to tbe delivery of ice to Ms customers. The circumstance that he was the proprietor is important only as showing the value of his time and his ability to earn money. The weekly payments provided for by the policy are graduated according to the ability of the party insured to earn money in his employment, occupation or profession.

There is a provision in the policy that, if a person receives an injury while engaged temporarily or otherwise in an occupation or employment classified as more hazardous than the one stated in his application, indemnity shall be afforded only at the rate provided for the occupation or employment in which the injury is received. No partial defense is available to the defendant under this provision, for the reason that our construction of the language above quoted is, that the occupation or employment of the plaintiff as an iceman, adding the words “ as proprietor,” did not describe him as only engaged in the management of a business, but was broad enough to include a practical and laboring man engaged in the actual delivery of ice in his own behalf. Had he not been actually the proprietor of his own business, then, doubtless, the policy would not have provided any payment to him above five dollars a week, placing him in a class of mere laborers.

It is further claimed in behalf of the defendant that no recovery can be had, because no immediate notice of the accident was given to the company in pursuance of the requirements of the policy. By inspection of the case, however, it is found that the company distinctly waived any defense of this kind in its communication made by the secretary to the plaintiff.

It is further contended that the disability caused by the injuries was partial only, and not total, and that, consequently, under the terms of the policy no recovery can be had. It is true that no right of action accrues to the plaintiff under the terms of the policy unless the disability to pursue his vocation is total, and not merely partial. (Knapp v. Pref. Mut. Acc. Assn., 53 Hun, 84.) This question is to be determined by the language of the policy in connection with that of the application, where it is said in the policy that he was by “ occupation or employment an iceman (prop.),” and in the applicacation where it is said “ my occupation is fully described as follows: “ Iceman, proprietor.”

The circumstances of the case, in connection with the testimony, discloses the fact that the plaintiff, while not able, by reason of his personal injuries so received, to carry on the business of delivering ice, was totally disabled within the meaning of this policy, although, notwithstanding his injuries, he was able to give general directions to persons who took his place as an iceman during the period of his disability.

The judgment should be affirmed, with costs.

Barker, P. J., and Dwight, J., concurred.

Judgment affirmed, with costs.


text:
    PATRICK LEYDEN, Appellant, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Respondent.

      Injury to a cow escaping on to a, railroad track — a fence originally four feet in height, broken down to two feet eight inches, evidence of negligence on the poirt of the rail/road company.

    In an action brought to recover the value of a cow which was killed on the defendant’s railroad, it appeared that the plaintiff’s premises, upon which the cow was kept, were separated from the railroad property by a fence which had been constructed by the company, and which was originally four feet and upwards in height; that it had been allowed to remain broken down, in places to the height of two feet and eight inches, to the knowledge of the agents of the railroad company, and that through this fence the plaintiff’s cow had escaped on to the railroad lands where it had been killed by a passing engine.

      Held, that the fact that the fence had been permitted to be broken down to a little more than one-half of its original height was evidence tending to show that the fence was insufficient, and that the case was not one which required the evidence of expert witnesses to justify the jury in finding that this barrier of two feet and eight inches was not sufficient in height to turn away peaceful cattle.
    Appeal by the plaintiff from a judgment' of the County Court of Monroe county, entered in the office of the clerk of the county of Monroe on the 18th day of April, 1889, reversing a judgment recovered by the plaintiff in a Justice’s Court for the sum of forty-four dollars and sixty cents damages and five dollars costs.
    The action was brought to recover damages for the killing of a cow belonging to the plaintiff, which escaped from a pasture lot on to the defendant’s tracks, where it was struck by a passing train.

      John E. Robson,, for the appellant.

      Albert H Harris, for the respondent.
   Macomber, J.:

This action was brought to recover the value of a cow which was killed on the defendant’s railroad by an engine on the 6th day of September, 1888, in the town of Mendon, Monroe county. The plaintiff’s premises abutted against the railroad property and were separated therefrom by a fence which had been constructed by the defendant some years previously. There is nothing in the case to show that the fence, as originally made, was not suitable and proper for the purpose of preventing peaceable cattle from entering upon the railroad tracks from the plaintiff’s lands. The plaintiff’s farm was divided by the defendant’s railroad; his house and buildings being south of the track and his two pasture lots north of it. These pasture lots bordered on the railroad and each had its own farm crossing affording access to the south part of the farm. The cow in question, on the day it was killed, was pasturing in the west of the two pasture lots. This cow, with others, was driven across the track to that field in the morning, and in the afternoon was discovered to be dead on the side of the track, under circumstances which showed that she had been struck by the defendant’s locomotive. There is no evidence in the case to show that the cow might have got upon the tracks on this occasion through any carelessness on the part of the plaintiff or his employees in leaving the gate open. It is true that some evidence'was given to the effect that at one time the gate was said to have been shut and the pin fastening the gate was in the post, and at another time, later, the pin was upon the ground, but the gate at that time also was closed. There is nothing in the evidence to show that the gate was, in fact, left open so as to permit this cow to pass through.

That it was impossible for an animal to get through the gate and the gate to close after her of its own motion, is disproved by the circumstances that the gate sagged heavily at the further end, and in order to be opened, had to be lifted from the ground and carried for some little space. The assertion, therefore, made in behalf of the defendant, that the cow went through the gate on this occasion may be dismissed as being wholly unsupported by any evidence in the case.

One of the main contentions of the counsel for the defendant is, that the plaintiff' failed to show that the fence in question was insufficient. This branch of his argument brings up for consideration that portion of the general railroad act (Laws of 1850, chap. 140, § 44), which provides that “ every corporation formed under this act, shall erect and maintain fences on the sides of their road of the height and strength of a division fence required by law, with openings or gates or bars therein, and farm crossings of the road for the use of the proprietors of lands adjoining such railroad. * * * Until such fences and cattle-guards shall be duly made, the corporation and its agents shall be liable for all damages which shall be done by their agents or engines, to cattle, horses or other animals thereon? and after such fences and guards shall be duly made and maintained, the corporation shall not be liable for any such damages, unless negligently or willfully done.”

The Laws of 1854, chapter 282, section 8, also provides that every railroad corporation * * * shall * * * erect and thereafter maintain fences on the sides of their roads of the height and strength of a division fence as required by law. * * * And so long as such fences and cattle-guards shall not be made, and when not in good repair, such railroad corporation and its agents shall be liable for damages which shall be done by the agents or engines of any such corporation to any cattle, horses, sheep or hogs theleon; and when such fences and guards shall have been duly made and shall be kept in good repair, such railroad corporation shall not be liable for any such damages, unless negligently or willfully done.”

The electors of each town have, under the Revised Statutes, the power at their annual town meeting to make rules and regulations for ascertaining the sufficiency of all fences in each town. (R. S., part 1, chap. 11, tit. 2, art. 1, § 5, sub. 11.) When the sufficiency of .a fence shall come in question in any spit; it shall be presumed to have been sufficient until the contrary be established. (Same chap., tit. 4, art. 4, § 45.)

There is no evidence in this case that the town has established the height or strength of the division fences, or any fences. In the absence of such action by the authorities, it was competent to show what in that town the height and strength of such fences generally were. There was, however, no proof of this fact. But it is shown that the railroad company, of its own motion, recognizing its own duty and liability, had constructed this fence in a proper way and of a suitable height and strength to turn orderly and peaceable cattle and other animals from breaking into the railway inclosure. The fence so erected by the defendant was four feet and upwards in height, and had been so maintained by it until, through decay or otherwise, a portion thereof had been broken down and left unrepaired to the full knowledge of the defendants’ agents for a considerable period of time.

Under these circumstances, the fact that there was no standard of height or strength of fences prescribed by the town authorities, as well as the general style of division fences throughout the town, is quite unimportant. The defendant must be deemed to have determined conclusively, as against itself, in relation to abutting owners, that the height and strength of the fences so erected by it were necessary and proper for the protection of the adjacent owners of land having cattle and other animals pasturing thereon. The defendant cannot now be permitted to say that it erected a fence higher and stronger than was necessary for that purpose. The statute not only requires the erection of the fence originally in a manner to be sufficient to turn cattle and other animals, but that the same must be maintained in that condition. Hence if the railway company permits a portion of its fence to be broken down to a height little more than one-half of the height which it deemed originally to be necessary, and cattle escape through the same upon the railway lands, the company is liable for damages done by its engine.

The learned county judge was of the opinion that there was no evidence which warranted the jury to find a verdict in favor of- the plaintiff. He thought that the jury had not the right to say that a fence originally four feet and upwards in height, which had been suffered to remain broken down to a height of two feet and eight inches in places, to the knowledge of the defendants’ agents, was not evidence to show that the fence was insufficient, and that the jury had no right to act upon any supposed knowledge of their own and to say that a barrier two feet and eight inches in height was not sufficient to turn away peaceable cattle. It seems to us, however, that the case was not one which required evidence of expert witnesses, but that the jury, acting upon a knowledge common to all men of affairs, might be permitted properly to say that a once properly constructed fence, of sufficient height and strength to turn cattle, might be deemed insufficient and inadequate if permitted to remain in a broken condition in places, leaving a barrier only two feet and eight inches in height.

The learned counsel for the defendant does not go, in his argument, to the extent of claiming that other evidence should have been given of an expert character to the effect that a fence two feet and eight inches in height is insufficient, but he bases his argument upon the ground that there is no evidence whatever that the cow went over the fence at the point where the boards were broken. Inasmuch, however, as the possibility of the cow getting through the gate must be necessarily abandoned in the argument, for the reasons above stated, the jury was warranted from the evidence to draw the conclusion that the escape was made over the lowest part in the fence. There was no eye-witness to the escape, and none was required in order to sustain an intelligent verdict where the circumstances point so unerringly to the conclusion that the cow could not open the gate, and could have got upon the defendant’s premises only at the lowest point in the fence where the boards had been so long removed.

Much stress has been laid by counsel for the defendant upon the case of Morrison v. The New York and New Haven Railroad Company (32 Barb., 568), as an authority against the maintenance of this action. The thing decided, however, in that case was only this: In an action against a railroad company for negligence in running over and killing a horse, where the injuries are alleged to have oocurred in consequence of a defect in a fence which the defendant was bound to maintain, if there is any evidence that the fence was insufficient and defective, and that the defendant’s agents knew or had notice thereof, and the horse got upon the track by means of such defect, it is erroneous to nonsuit the plaintiff. And if, in such a case, there is any evidence that the horse got upon the railroad track over or through a fence which the defendant was bound to maintain, it should be submitted to the jury; but not so of the evidence that possibly the horse so got upon the track. And, further, if there is no evidence that the horse got upon the track in the manner alleged, the plaintiff should be nonsuited. That case is distinguishable from the one at bar as is shown by the language of the opinion of Judge Allen, who, speaking for the court, says, at pages 572-574: The defect in the fence, if there was any, was in its original construction, and not by reason of its decay or getting out of repair. * * * Upon the evidence there was no proof that the fence was defective or insufficient.” The necessary inference from the evidence was that the bars had been left open by the hired man.

Judge Allen further says: “ Upon this evidence the presumption was that the horses had escaped through the bars left open by the hired man when he turned out the oxen; and this presumption is strengthened by the absence of the hired man and the omission to prove the condition of the bars when they were first seen in the morning.”

The defect in the fence complained of, however, in this action, is not of its original construction, but in the omission to maintain it as the defendant had deemed it to bo necessary to construct it' at the outset. The company had suffered it to become out of repair’. It was broken down from a height of upwards of four feet to the height of only two feet, eight inches. The plaintiff, in our judgment, satisfied the duty imposed upon him by the rules of evidence, and actually did give some proof from which an inference could be derived safely by the jury, that the cow went over the fence where these boards were broken at a place not far remote from the gate.

The judgment of the County Court should be reversed, and that of the justice of the peace affirmed, with costs.

Barker, P. J., and Dwight, J., concurred.

Judgment of County Court reversed, and that of the Justice’s Court affirmed, with costs.


author: Barker, P. J.:

text:
    THE FIRST NATIONAL BANK OF BATH, Appellant, v. THOMAS WARNER, FRANKLIN N. DRAKE and ORANGE S. SEARL, Respondents.

      Evidence of transactions, and representations and promises, made prior to an assignment, is competent in an action brought to set it aside as fraudulent.

    In an action to set aside an assignment for tlie benefit of creditors, on the ground that it was fraudulent, the plaintiff, as bearing upon the assignor’s intent to delay and defraud his creditors, offered to prove negotiations had from time to time in regard to the extension of negotiable paper which had been given by the assignor, and that pending such negotiations, the assignor promised to give security for his indebtedness, and that the plaintiff had deferred entering judgment by reason of such promises on the part of the assignor, and also upon the faith of false statements made by him that there were no mortgages upon certain real estate which he owned; that the assignor had also represented that he was perfectly good; upon the faith of which statements certain paper was extended for a period, before the expiration of which the assignment had been made.

      Held,, that the evidence offered was both competent and material, and if given would have tended to prove that the assignor in making the assignment intended to hinder and delay his creditors.
    That it was competent to prove, as bearing upon the question of fraud, the nature and character of the business transactions of the assignor down to the time of the assignment; the use made of the avails of his property immediately preceding the assignment; negotiations had with his creditors relative to the payment, or the securing of the payment of their claims; representations made by the assignor to induce his creditors not to press the collection of their claims, and as to his solvency; the amount of his indebtedness and the nature of his assets.
    Appeal by the plaintiff from a judgment, entered in the office of the clerk of the county of Steuben on the 29th day of August, 1887, adjudging that the assignment made by the defendant Thomas Warner to the other two defendants for the benefit of creditors was valid and not fraudulent, and that the complaint of the plaintiff be dismissed.
    The action was in the nature of a creditor’s bill, brought to set aside as fraudulent, á general assignment for the benfit of creditors, made by the defendant Thomas Warner to the defendants Franklin N. Drake and Orange S. Searl.
    The plaintiff is a judgment-creditor of the defendant, Thomas Warner, his judgments amounting in the aggregate to the sum of $20,000, rendered in several actions, one of which was against the said Warner, individually, and in the others the judgment was joint against him and other parties. This action attacked as fraudulent, the individual assignment of the said Warner, made on the 27th day of May, 1885, to Drake and Searl as assignees for the benefit of creditors, and sought to reach the property transferred to them to be applied in payment of the said judgments. At the time of making such assignment and for some years prior thereto, Warner was a member of the copartnership firm of F. Gr. Cramer & Co., doing a hardware business in the village of Cohocton, of which the said Cramer was the other member. lie was also a member of the copartnership firm of Warner & Wilcox, doing business as lumbermen, composed of himself and one Albert H. Wilcox. He was also a member of the firm of Turner, Warner & Wilcox, engaged in the manufacture and sale of lumber in the. city of Elmira, the other members of the firm being Albert H. Wilcox and Alexander Turner. On the same day each of the said firms made an assignment to said Drake and Searl for the benefit of their creditors. The validity of those assignments are not directly attacked as fraudulent in this action. For some time prior to the making of said assignments Warner was insolvent, which he well knew, his individual indebtedness and liabilities amounting in the aggregate above the sum of $100,000, and his individual assets were about the sum of $100,000, but not sufficient to pay his liabilities in full. All of the copartnership firms were also insolvent. Warner had personal charge and man. agement of his individual business, and was also the chief manager and financial agent of the several copartnerships of which he was a member. He appeared in the action and made answer, and on the trial he contended that the assignment was valid and was examined as a witness in behalf of himself and his co-defendants. This action was tried at the Steuben Special Term, and the court found as a fact that the assignment was made in good faith and without any intent of the assignor to hinder, cheat, delay or defraud the plaintiff or any of his other creditors. From the judgment the plaintiff appeals. All the evidence produced on the trial was contained in the case attached to the judgment-roll. Other facts found and set forth in the decision,- bearing on the question, considered by the court, are referred to in the opinion.

      J. F. Pa/rkh/wrsb and M. Rwmsey Miller, for the appellant.

      Theodore Bacon, for the respondents.
   Barker, P. J.:

Nothing appears on the face of the assignment which indicates that the assignor has applied any of his property to a fraudulent or unlawful purpose, or that the trust created is not in all respects legal and valid. In terms, the assignor has devoted all his property, not exempt from sale on execution, to the payment of his debts and to the discharge of his legal obligations.

The plaintiff, however, charges that the transaction was a fraudulent one on the part of the assignor, and that he made the assignment and placed his property in trust, with the intent to hinder, delay and defraud a portion of his creditors, and among them the plaintiff; and that by a secret arrangement made with the assignee, before or at the time of making the assignment, he should be permitted to possess and enjoy for his own use a portion of the property assigned, and continued to manage and carry on the business; and that, as a matter of fact, a portion of the debts preferred, were fraudulent, and fictitious. In support of this charge of fraud, the plaintiff produces considerable evidence, but the learned trial court upheld the assignment and found specifically, that the same was made in good faith and not for any fraudulent purpose. The learned counsel for the appellant, in an earnest and elaborate argument, insists that the findings of fact were against the weight of evidence, and the accusation of fraud was well supported; and for that reason, independently of all other questions presented by the case, the judgment should be reversed and a new trial granted.

This court has the power, and it is its duty, on an appeal from a judgment entered upon the decisions of the court, where the trial was without a jury, to examine the evidence presented on the trial and determine whether the conclusions of fact, as found by the trial court, are sustained by the evidence, and if not, to reverse or modify the judgment as the justice and equity of the case may require. We have examined the evidence with much attention, for the purpose of acquainting ourselves with the general features and circumstances of this somewhat involved and intricate case, but as we have reached the conclusion that the present judgment must be reversed and a new trial granted because competent and material evidence offered by, the plaintiff, on the question of fraud, was erroneously excluded therefrom. For that reason it is unnecessary to pass on the question -whether the trial court found contrary to the evidence on the issue of fraud. We also deem it improper for us to discuss and declare our views as to whether the charge of fraud was sustained or not on the evidence contained in the record now before us. On another trial, the evidence may be materially different and our views as to the force of the evidence, as now presented, would not aid and might embarrass the court on a re-trial.

The assignor’s individual and copartnership indebtedness and liabilities exceed the sum of $250,000. He received from the First National Bank of Corning large accommodations for several years before his failure, and during the same period, the plaintiff loaned to him, and the firms of which he was a member, large sums of money; and at the time that the assignment was made, his indebtedness to the plaintiff amounted to a large sum, a portion of which was included in the judgments upon which this action was based. The assignee Drake was owner of two-thirds of the stock of the Corning Bank, and he was its managing officer, and on the day the assignment was executed the bank transferred to him all its claims and demands against the assignor and' the copartnership firms of which he was a member. In all the assignments, Drake was made a preferred creditor, and the amount of his claims, as set out in the schedules, was greater than the value of all the property embraced in the several assignments. At the time of making the assignment the assignor was also a member of the firm of Turner, Warner & Wilcox, doing business as lumbermen at Elmira, in the State of Pennsylvania, and he was an indorser for that firm in a large amount of commercial paper, held by the Corning Bank, and for which it held securities, and such indebtedness and the securities were also transferred to Drake before the assignment was delivered. On the 26th day of January, 1885, Warner executed and delivered to the Corning Bank a mortgage upon several pieces of land situated in the State of New York, as a security for the payment of a sum not exceeding $75,000 as a continuing security; for the payment of all promissory notes, bills of exchange, drafts, checks, acceptances and indorsements of Thomas Warner, and of Turner, Warner & Wilcox, and of Warner & Wilcox, which the said bank then held and owned, and which it might thereafter own, and of all renewals thereof, and to secure all the indebtedness which the same parties, or either of them, might owe, according to the character and conditions of such indebtedness; and in all other respects the said instrument contained the usual clauses of real estate mortgages. The same was never recorded. If the assignment is sustained, the plaintiff will receive nothing out of the assets upon its indebtedness from the assignor’s property, because of its insufficiency to pay in full the preferred indebtedness.

At times, for the period of two or three months before the making the assignment, a large amount of the assignor’s paper was past due and under protest, and was held by various parties, including the plaintiff, in the vicinity where the assignor was doing business; and among those holding such paper was a banking-house doing business under the name of the Hallock Bank, of which William IT. Hallock was one of the members. In April this firm held some eight or ten thousan'd dollars of protested paper, and a like amount which had not then matured. Negotiations were had from time to time between the assignor and Mr. Hallock, in regard to the payment of such indebtedness, the assignor requesting a renewal of the papers and that the time of payment be extended, which resulted in an arrangement, which was consummated on the fifteenth day of May preceding the assignment, by which the paper was renewed and the time of payment extended beyond the twenty-seventh day of May, the date of the assignment. As bearing upon the assignor’s intent to delay and defraud his creditors, the plaintiff offered to prove that during these negotiations Warner promised to give Hallock security for his indebtedness; that in March preceding, an action was commenced upon one of the notes, held by the Hallock Bank, against the firm of Cramer & Warner, by personal service upon both of those parties, and that no answer was interposed, and twenty days having expired, the plaintiffs might have entered judgment; and that it was part of the said arrangement, made and concluded on the fifteenth day of May, that judgment should not be entered in that action, and was not until after the assignment; and, for the purpose of securing an extension of time and delay in entering judgment in that action, Warner stated to Hallock that he owned all his real estate, and that there was no mortgage upon it, and that upon the faith of such statements an extension of time was granted by Hallock.

A further offer was made to prove that during such negotiations Warner represented that the firm of Cramer & Warner was solvent and able to pay their debts. This was objected to by the defendants as incompetent, and the same was excluded and the plaintiff excepted. The plaintiff also offered to prove by Mr. Allen, the cashier of the Hallock Bank, that in December, 1884, the bank urged Mr. Warner to pay the paper which it then held against him; that such interviews and conversations were continued at different times until the latter part of the month of April, when Mr. Warner told the cashier, when conversing upon the subject of the payment of the paper held by the bank, that he was perfectly good and that he would pay the paper, and solicited Mr. Allen to extend the time of payment, and that the same was rediscounted, so as to extend the time of payment beyond the day of making the assignment; and that in consenting to such renewal the cashier relied upon the statement of Mr. Warner that he was good, and that Mr. Warner knew that such statements were false at the time he made them. This evidence was objected to by the defendants as incompetent and immaterial, and was excluded, and the plaintiff excepted. This evidence was, as we think, both competent and material; and if it had been received would have tended to prove that the assignor in making the assignment intended to hinder and delay, and also to cheat and defraud his creditors. The statute declares that every conveyance or assignment made with intent to hinder, delay or defraud creditors is void. (3 R. S. [7th ed.], 2329.) If either party to the conveyance had in mind to accomplish that which the statute condemns as fraudulent, then the transaction cannot stand when assailed by the creditors of the assignor. If the assignor in conveying the title of his property to the assignees was actuated by the fraudulent intent condemned by the statute, the assignment cannot be upheld, although the assignees were wholly innocent of any fraudulent purpose on their part. (Starin v. Kelly, 88 N. Y., 418; Loos v. Wilkinson, 110 id., 195.)

The assignor is a party defendant in this action, and he, in his answer, denied all allegations of fraud charged in the complaint, and insisted on the trial that the assignment was valid, and was not made with intent on his part to cheat and defraud his creditors, and, as against him, it was competent to prove, as bearing on the question in issue, the nature and character of his business transactions down to the time he made the assignment and delivered up the possession of the assigned estate to the assignees; the use he made of the avails of his property immediately preceding the assignment; the negotiations he had with his creditors relative to the payment or securing the payment of the same; the representation which he made, if any, to induce his creditors not to press the collection of their debts, and the statements which he may have made to them during such negotiations as to his solvency, the amount of his indebtedness and the nature and character of his assets. For the purpose of testing the motives and integrity of an insolvent debtor in disposing of his property with a view of securing one creditor in preference to another, it is, as a general rule, permissible to inquire into the details of his business transactions and the manner in which he has managed his property for such a length of time immediately preceding the assignment as will throw the least light on the question of his intent. The evidence offered and rejected should have been received.

If the negotiations with the Hallock Bank were of the character claimed by the plaintiff, and the assignor made the representations as alleged, they would have tended to prove that Warner then had it in mind to make the assignment, and that it was part of his scheme to prevent the entry of judgments against him, and to postpone the time of payment of his indebtedness to that bank. The ruling of the court condemned, as incompetent, all evidence of this character, and it cannot now be said by this court that the plaintiff was not able to produce evidence of similar dealings and transactions with his other creditors, whose debts were past due, and who resided in the neighborhood of his home office. These negotiations were so near the day when the assignment was executed; and as they related to his financial affairs, his statements to and his negotiations with his creditors were in the nature of res gestee declarations on the question of fraud within the rule as stated in Loos v. Wilkinson (supra). (See, also, Rothschild v. Salomon, 20 N. Y. St. Rep., 59.)

For the purpose of determining the question of fraudulent intent on the part of "Warner in making the assignment, the court held that, as matter of law, “ the allegations of fraud must be supported by such a just preponderance of evidence as makes the proof of fraudulent intent satisfactory.” This conclusion of law was followed by others which declared that the assignment was valid, and not fraudulent and void, and that the defendants were entitled to judgment against the plaintiff upon the issues in this action in accordance with “ the foregoing findings of fact and conclusions of law,” and dismissing the complaint on its merits. Wb refer to the rule of evidence, as stated by the trial judge, by which the questions of fraud were determined, not for the purpose of discussing its accuracy, but to state that we pass the question without consideration, as there must be a new trial for the error before mentioned.

The judgment is, therefore, reversed and a new trial granted, with costs to abide event.

Dwight and Macomber, JJ., concurred.

Judgment reversed and new trial granted, with costs to the appellant, to abide the final award of costs.


text:
    ROBERT H. SHANNON and Another, Respondents, v. JOHN H. PICKELL and Others, Appellants, Impleaded, etc.

      Will — a gift of the residue to the children of the testator’s sister does not cover the case of a grandchild of the sister.

    A testator, by bis will, provided as follows: “ I further order and direct that, after the decease of my mother and sister Shannon and my wife, Nancy G. Pickell, the remainder of my estate, should there be any, it shall be divided among the children of my sister Shannon and the children of my brother, John Pickell, according to the discretion and judgment of my wife, Nancy G. Pickell, as she shall direct.”
    The power of appointment given to Nancy G. Pickell was not executed by her. At the time of the death of the testator one of the children of the testator’s sister Shannon had died, leaving her surviving a child then living.

      Held,, that, under the provisions of the will, such grandchild of Mrs. Shannon took no interest in the estate.

      Appeal by certain of tbe defendants from an interlocutory judgment in an action for the partition of real property, entered in favor of the plaintiffs in the office of the clerk of Livingston county on the 14th day of August, 1888, and also from an order made in said action on June 26, 1888, by which it was referred to Oscar Craig, Esq., to ascertain the value of certain contingent dower rights, and to state the form of final judgment, and determine the amount of certain net rents and profits, with interest added, which last-mentioned order was entered in said clerk’s office on the 14th day of August, 1888.
    The action was brought for the partition of lands, and by the interlocutory judgment therein it was determined that the plaintiffs, together with all the other respondents, were tenants.in common of the premises, deriving their title under the last will and testament of William H. Pickell, who died, as it was claimed by the plaintiffs, and a part of the defendants, the owner thereof in fee simple, which was denied by the appellants, who claimed title thereto as the heirs-at-law of John Pickell, who was a brother of the said testator. At the time of his death William H. Pickell was in possession of the premises claiming title thereto. By his last will and testament, made on the 4th day of August, 1859, he devised to his wife Nancy G-. Pickell, a life estate in the premises, and directed that his mother should have support and maintenance during her lifetime, and directed that his executors carry out'that provision of his will. The sixth and last clause of the will is as follows: “ I further order and direct that after the decease of my mother and sister Shannon, and my wife Nancy G-. Pickell, the remainder of my estate (should there be any) it shall be divided among the children of my sister Shannon and the children of my brother John Pickell, according to the discretion and judgment of my wife Nancy G. Pickell, as she shall direct.” The said Nancy G. Pickell and two other persons were appointed executors, all of whom were dead at the time of the commencement of this action. In her'lifetime, and in September, 1863, the said Nancy G. Pickell, by an instrument in writing and under seal, which recited that the same was made in pursuance of a power given to her by the will of William G. Pickell, to dispose of said lands according to her discretion, conveyed the premises to John Pickell, the father of the appellants. The mother of the testator and his sister Shannon also died before the commencement of this action, the said Nancy Gr. never having, in any other form or maimer whatever, executed, or attempted to execute,, the power vested in her by the will. All the parties to the suit were either the children of Mrs. Shannon or of John Pickell, except the defendant, Sarah J. Mead, who was a grand-daughter of Mrs. Shannon, and her mother died in the lifetime of the testator and before the making of the will. By the decree each party to the action, including Sarah J. Mead, were allotted the undivided one-fourteenth part of the premises. The complaint alleged that Sarah J. Mead was entitled to the'undivided one-fourteenth part of the premises, and she appeared and admitted that her share or interest in the premises was correctly set forth in the complaint, and submitted her rights to the protection of the court. The appellants in their answer deny that she had any rights therein.

      John A. Vanderlip, for the appellants.

      F. F. JBullard, for the respondents.

      A. J. Abbott, for the defendants Brown, et al.
   Barker, P. J.:

On the former appeal in this action, it was held that the disputes between the parties to this action as to their rights and interests in the premises could be litigated and determined and a decree for partition entered under the provision of section 1543 of the Code of Civil Procedure. (See 2 N. Y. St. Rep., 160.) It was also determined that the conveyance of the premises by the trustee of the power, Nancy Gr Pickell, to John Pickell was unauthorized and invalid, and that the power remained unexecuted at the time of her death and vested in this court, to be executed under its direction, as provided by the provisions of the Revised Statutes. (1 R. S., 734, §§ 99, 100, marg. p.) On the last trial, as well as the first, the question Avas litigated whether the title to the lands was vested in the testator or his brother John Pickell, the father of the appellants.

"We think the fair preponderance of the evidence is in support of the conclusion of the referee that William IT. Pickell, the testator, Avas the owner of the fee, and that all the equities which John H. ' Pickell had at one time in the premises had been extinguished. We are also of the opinion that none of the exceptions to the reception or rejection of evidence were well taken. This brings us to the consideration of the only other question that merits attention, which is, whether the defendant Sarah J. Alead is designated in the will as one of the persons whom the donee of the power might designate to take the whole or any part of the remainder after the termination of the life estate of Nancy Gr. Pickell, the widow of the testator, as provided in the sixth clause of the will ? This question was not presented for consideration on the former appeal, nor does it appear by the records now before us that the attention of the learned referee was directed to the point, but the exceptions are broad enough to raise the question, and it has been discussed in the written argument, presented by the learned counsel for the appellants. The ^trustee of the power having died, leaving the power unexecuted, the statute provides that its execution shall be decreed by a court of equity for the benefit equally of all persons designated as objects of the trust. (R. S., part 2, chap. 1, tit. 2, §§ 99,100.) Airs. Alead is a grandchild of Airs. Shannon, and her mother, Airs. Searls, died in the lifetime of the testator and before he made 1ns will. If Mrs. Alead is included in the word children, as the same is used in the sixth clause of the will, to designate the class of persons to whom the trustee might convey the premises after the termination of the life estate, then the decree declaring that she is interested in the premises equally with the other parties to the record is correct, otherwise she has no estate therein. The word children, in common .parlance, does not include grandchildren or any other persons other than theimmediate descendants in the first degree of the person named as the ancestor; but it may include other persons where it appears that there were no persons in existence who would answer to the description of children in the primary sense of the word at the time of making the will, or whether there could not be any such at the time or in the event contemplated by the testator, or whether the testator has clearly shown by the use of other words that he used the word children as synonymous with descendants or issue to designate or include legitimate offspring, grandchildren or step-children. (Mowatt v. Carrow, 7 Paige, 328; Palmer v. Horn, 84 N. Y., 516; Magaw v. Field, 48 id., 668).

In the case last cited, the testator devised to the children of one Magaw, then deceased, a certain parcel of land, to have and hold .the same to their said children, their heirs and assigns forever. At ■the time of the execution of the will there were seven children •of the said Magaw living. All had died but two before the testator’s death. The two living claimed the whole estate, and it was field that the devise was to a class, and only the surviving children took under it. (Sherman v. Sherman, 3 Barb., 385; Cromer v. Pinckney, 3 Barb. Ch., 466; Tier v. Pennell, 1 Edw. Ch., 354.)

All the cases hold that the word “ children,” in its primary and ■ordinary sense, means the immedate, legitimate descendants of the persons named. And where there is nothing to show that the testator intended to use it in a different sense, it will not be held to include grandchildren. There is nothing in the contents of the will which suggests the thought that the testator had in mind his grand-daughter, Sarah J. Mead, whose mother was dead when he executed the will. The remainder of the estate in the premises was given in terms to the children of his brother and sister, as a class, and they are entitled to the same in ecpial proportions, excluding all' other persons.

The case of Prowitt v. Rodman (31 N. Y., 42), contains an elaborate discussion as to who are, and who are not, included in the word “ children,” when used in an instrument disposing of property, .and is not at' all in conflict with the rule which we have quoted from other decisions, and fully recognizes the same.

So much of the judgment as declared that Mary J. Mead is the •owner of the undivided one-fourteenth part of the premises is reversed, and as to her, the complaint is dismissed, without costs as .•against her, and the judgment so modified that it will adjudge that the other parties to the suit are each -entitled to the undivided one-thirteenth part of the premises, without costs of this appeal to ■either party.

Dwight and Macomber, JJ., concurred.

Judgment modified as indicated in the opinion of Barker, P. J., and as modified affirmed, without costs to either party.


text:
    In the Matter of Widening HAND STREET in the City of Rochester.

      Constitutional law — eminent domain — validity of a statute aitthorizing the cou/rts to increase or diminish the ema/rd of damages made by the commissioners— estoppel.

      The provisions of tlie Constitution of the State of New York as to the mode and manner of compensation to be paid for private property, when taken for public use, are for the sole benefit of the owner
    It is not a valid ground of objection, on the part of a municipal corporation initiating proceedings under a statute, the provisions of which authorize the-court, ou an appeal from the decision of the commissioners, to increase or diminish the award made by the commissioners to the landowners, that the exercise of such authority by the court is in violation of the constitutional provision.
    A municipal corporation, by seeking the benefits and privileges conferred upon it by the statute, waives the objection that the same is void and inoperative-because in violation of the provisions of the Constitution.
    Appeal by tlie city of Rochester from an order of tbe Monroe-Special Term, by which tbe sum awarded by tbe commissioners to George S. Riley was increased from one dollar to $1,800. On a, previous bearing tbe order was affirmed. Eor a further statement, of facts see tbe case as reported in 52 Hun, 206. A reargumenfc was ordered on tbe appellant’s application.

      Quincy Van Voorhees, for the appellant.

      George Yeomans, for the respondent George S. Riley.
   Barker, P. J.:

A reargument was ordered in this case that the appellant might have an opportunity to present a question which bad not been before raised in these proceedings by either party. We tbe more readily allowed a reargument as the decision of this court is final and conclusive on tbe parties as to the question of damagesA

It is now contended by tbe appellant that tbe provision found in its own charter, that this court may, on appeal from tbe award of damages made by tbe commissioners, increase or diminish tbe same, is in violation of tbe provisions of section 7, article 1 of tbe Constitution and void, and for that reason the order of tbe Special Term should be reversed. The Constitution declares that “ when private property shall be taken for any public use, the compensation to be made therefor, when such compensation is not made by the State, .shall be ascertained by a jury, or by not less than three commissioners appointed by a court of record, as shall be prescribed by law.” The charter points out the course of procedure to be observed in conducting proceedings for condemning lands for public streets, and provides: In case the lands required cannot be purchased from the owner, then commissioners, not less than three nor more than five in number, shall be appointed by this court or the County Court of Monroe county, on the application of the city authorities, to ascertain the damages which should be allowed the owners for the lands proposed to be taken. The commissioners are required to report their proceedings to the common council in writing, and that body may confirm their report or abandon the proceedings. (Laws of 1880, chap. M, § 179.) If the report is confirmed by the common council, the landowner, if dissatisfied with the amount of the award, may ■appeal to this court, and, upon the proceedings had before the commissioners, including the evidence taken by them, this court shall -consider the said appeal and examine all the questions of law or of •fact that may be involved therein, and shall confirm, annul or modify the said report as the said court shall deem just, or it may direct a rehearing before the same or other commissioners. The commissioners awarded to the respondent, George S. Riley, for the lands taken and owned by him the sum of one dollar, and their report was ■confirmed by the common council, and he, feeling, aggrieved, .appealed from the order of confirmation to this coui’t, and the appeal was heard at Special Term, and the amount of the award increased to $1,800, and from that order, the city has appealed.

By the provisions of section 188 of the charter, an aggrieved party may appeal from the order of the Special Term to the General Term, and on such appeal this court has the same powers to review the proceedings as the Special Term possessed under section 187, ancl the decision of this court is made final and conclusive upon all the parties. We held on the former argument that this court, ■either at a Special or a General Term, under the provisions of sections 187 and 188, possessed the power to increase or diminish the damages to be awarded to the landowner. It is admitted by all, that the provision of the act conferring on this court the power to determine the amount of damages which shall be paid the landowner, who may appeal from the award of the commissioners by increasing or diminishing the award, is unconstitutional. It takes from the constitutional tribunal the question of damages and confers it upon this court, which has no jurisdiction over the subject-matter. (In re Village of Middletown, 82 N. Y., 196.)

The appellant, in the manner prescribed by the statute, initiated the proceedings, and it cannot object that the provisions of its own. charter, now under consideration, is unconstitutional. It has voluntarily invoked the aid of the law, which it now seeks to condemn as unconstitutional, to enable it to acquire title to the respondent’s, land for a public use, and had unreservedly consented that the proceedings maybe conducted to a final determination in the mode and manner pointed out by its charter. In this stage of the proceedings-the party instituting the same, cannot make the objection that the act is unconstitutional, for the purpose of securing a reversal of the order of the Special Term, as it has by its action sanctioned its. validity, and the court will not listen to an argument from the appellant on that point. The present attitude of the appellant is inconsistent with its action in putting these proceedings in motion, and the objection which he makes should not prevail. The case of the People v. Murray et al. (5 Hill, 468) supports the position that the appellant cannot, on this appeal, be heard to say that the provision of the charter in question is unconstitutional. In that case the defendants were authorized by an act of the legislature to erect a dam across the Genesee river, and were required to give a bond,, conditioned to pay such damages as any person might sustain in consequence of its erection, and that the same might be assessed by a justice of the peace in the manner provided by the act. The-plaintiff’s damages were assessed by a justice of the peace in conformity to the provisions of the act, and the action was brought-on the bond in the name of the people to recover for the benefit of the party whose damages had been assessed by the-justice of the peace. One of the defenses interposed and sought-to be maintained was that the act was unconstitutional, as it deprived them of the right tot-rial by jury, and it was held that as the defendants took the grant to build the dam, with the conditions attached to it, they were not at liberty to make the objection that the law was unconstitutional, although, under other circumstances, it might have prevailed; that it was competent for the defendants to waive the right of a trial according to the common law, even if, without such waiver, they would be considered as entitled to it.

In this case, the appellant accepted the charter as the law of its creation, and in seeking any of the benefits or privileges conferred upon it, it waives all objections that the same is void and inoperative for constitutional reasons. But the complete answer to the appellant’s contention is this: That the provisions of the Constitution as to the mode and manner of ascertaining the compensation to be paid for private property when taken for public use, is for the sole benefit of the owner; and the maxim that every person may renounce a benefit or waive a privilege which the law has conferred on him applies as well to constitutional law as any other. (Broom’s Legal Maxims, m. p., 547; Baker v. Braman, 6 Hill, 47.)

The landowner in this case has manifested his consent that the premises in question might be taken for a public street. It does not appear from the record that he has at any time interposed any objection to the proceedings instituted by the city authorities. He has appeared for the single purpose of securing a fair and just compensation for his lands, to be ascertained in the mode and manner pointed out in the appellant’s charter. By his appeal to this court, which was heard at Special Term, he waived all objections to the unconstitutionality of the act, and has tacitly consented that this court may review the action of the Special Term and increase or diminish the award of damages as.the judgment of this court may direct. In Baker v. Braman (6 Hill., 47), a private road had been laid out over the plaintiff’s lands by the highway commissioners on the application and for the convenience of the defendant, and the damages has been assessed in the manner pointed out by the statute, and the defendant interposed the defense that the law was unconstitutional and void, and there was no consideration for his implied promise to pay tbe same, and it was held that the action was well brought as the plaintiff, by bringing the action for the damages assessed, manifested his consent that the road be laid over his lands, and adopted the machinery pointed out by the statute for effectuating the grant or privilege ; that the provision of the Constitution was for the benefit of the landowner; and the principle that any person may renounce the protection which, the law bestows-upon him applies as well to constitutional law as any other. (See, also, Embury v. Conner, 3 N. Y., 511; Conkling v. King, 10 id., 440; Sherman v. McKeon, 33 id., 274; Knapp v. Town of Newtown, 1 Hun, 269.) TVe have examined all the authorities cited by the learned counsel for the appellant and none of them sustain the position that the party instituting the proceedings and seeking to maintain them, can object to the mode of review pointed out by the statute upon which the proceedings were founded. In Menges v. City of Albany (56 N. Y., 374), the action was by a taxpayer to restrain the city from collecting the tax assessed upon his property for the purpose of paying damages which had been awarded to certain owners of lands taken for a public street. The commissioners to assess the damages were not appointed by a court of record, but were selected by the common council of the city of Albany under the provisions of the enabling act authorizing the proceedings (Laws of 1870, chap. 77), and it was held that the act was void and the constitutional provision had been disregarded; that the appointment of commissioners must not only, in form, be made by the court, but it must be its independent, untrammeled act in the exercise of judicial responsibility; that the plaintiff, as a taxpayer, was in a position to raise the constitutional question.

In Hilton v. Bender (69 N. Y., 75) the question was as to the validity of a tax sale of lands for the non-payment of taxes assessed for the purpose of paying the expenses of opening a street, including damages awarded to a landowner, and the same question was presented as was considered in Menges v. City of Albany (supra), and that case was cited with approval. In re The Village of Middle-town (supra), also cited by the appellant, the appeal was by the landowner from an order of this court appointing commissioners to appraise the compensation to be made to the owners of lands and water rights to be taken for the purposes mentioned in the enabling acts. (Laws of 1879, chap. 85 ; Laws of 1866, chap. 347.) The act provided that, on an appeal from the award of the commissioners, the court may increase or diminish the amount of the compensation, and that provision of the act was held to be unconstitutional. And the court also held that, as the commissioners were appointed by a court of record, the constitutional requirement had been complied witli, and that part of the act was not so connected with the unconstitutional provision that the order appointing the commissioners by the court could be declared illegal and void. ■ The question here'in dispute was not raised in that case, whether the party initiating the jn-oceedings could raise the constitutional objection.

The landowner’s objection that the power bestowed upon the court to increase or diminish the damages was unconstitutional was prematurely raised by him, as he might never be affected by the provision, and, therefore, have no occasion to raise the question of the illegality of that portion of the act.

We have also, since the argument, been cited to In re City of Buffalo (78 N. Y., 362), but we fail to discover that any question was decided or principle laid down which is inconsistent with the views which we have expressed. In that case the city of Buffalo adopted proceedings to condemn lands to be used as a public street. They were conducted in pursuance of the provisions of the charter to the award of damages to the landowners by commissioners duly appointed, and the damages assessed upon lands benefited by the improvement. The city authorities then discovered that the initiatory proceedings on the part of the common council had not been in compliance with the provisions of the city charter. They then petitioned the court for leave to discontinue the proceedings, which was opposed by the parties to whom damages had been awarded, and also by those interested in the improvements. The relief asked for was granted, the court holding that it had the power to relieve the city from the dilemma in which it found itself, as taxpayers could raise the objection that the proceedings which resulted in a levy of a tax on their property had not been in compliance with the law, and they could successfully resist the collection of the tax, and the landowner to whom damages had been awarded could not reasonably object to the discontinuance of the proceedings, although they would lose the benéfit of the awards, for the reason that the title to the premises would not pass to the city until the damages awarded were paid, therefore they lost nothing in consequence of the discontinuance.

We have reconsidered the questions discussed and decided on the former appeal, and are confirmed in our opinion that the questions then considered were correctly decided, and the order appealed from should be, in all respects, affirmed, with costs of this appeal to be taxed as in a civil action.

As it does not appear by the record that the common council have, ordered an assessment to be made for the purpose of paying the expenses of the improvement, it seems that it may, if that be true,, abandon the proceedings of its own motion, and thus avoid the payment of an award which it insists is unreasonable in amount-(See § 179, chap. 14, Laws 1880.)

Dwight, <L, concurred; Macomber, «L, not sitting.

Order affirmed, with costs to be taxed as in a, civil action.


text:
    THE CITY OF ROCHESTER, Appellant, v. JOHN H. CAMPBELL and Others, as Executors of the Last Will and Testament of JAMES CAMPBELL, Deceased, Respondents.

      Municipal corporation — injury to one using the public street, from defects therein — damages paid, by the city are recoverable from the abutting owners — contract-obligation imposed by statute.

    In an action, brought by a municipal corporation against the owner of premises-fronting upon one of the public streets, it was alleged in the complaint that such corporation was charged with the duties of maintaining and keeping the public-streets in a safe condition, and that it was the duty of said landowner, under the acts relating to the city, to keep the- sidewalk in front of his premises in-good repair, and to remove and clear away all snow and ice therefrom; that such owner omitted so to do, and that one Ferguson, while walking along said street, stepped into a hole on the sidewalk, in front of the owner’s premises, and was greatly injured; that he thereupon sued the municipal corporation and. recovered damages, of which action the landowner had actual notice, and in-which he appeared and assisted in its defense.
    Upon the trial of an issue raised by a demurrer interposed to this complaint:

      Held, that the grant by the government to the municipal corporation of a portion, of its sovereign power Was a sufficient consideration for the implied contract, existing on its part to perform the duties which its charter imposed upon it.
    That such corporation had a remedy over against a party who caused the public-streets therein to become insecure by placing obstructions therein, or by omitting-any duty imposed by law which required him to keep the sidewalks in repair.
    That this remedy over did not rest in tort, and survived the death of the party-in default.

      Hegerich v. Keddie (99 N. Y. 258) distinguished.

      The obligation imposed upon a landowner by a statute to keep the sidewalk in front of his premises in repair is in the nature of a tax upon the property of tile-owner for the purpose of keeping the public street in proper condition, and imposes a contract obligation, as between the landowner and the public, so that an action for a breach of the performance of such duty on his part survives-_ his death.
    Appeal by tbe plaintiff from a judgment, entered in tbe office of tbe clerk of the county of Monroe on the 28th day of March, 1889, sustaining a demurrer interposed by the defendants to the complaint, of the plaintiff.
    The plaintiff is an incorporated city charged with the duties, by its charter, of maintaining and keeping in a safe and secure condition the public streets within its territorial limits. The complaint alleges-that the decedent in his lifetime was the owner of and in the possession of certain premises situated on the northerly side of' Strong street, in the front of which and adjoining such lands there-was laid a sidewalk for the use of the public; that it became and was the duty of the said James Campbell, under and by virtue of the acts relating to the city of Rochester and forming its charter, to keep said sidewalk in good repair, and also to remove and clear away all snow and ice and other obstructions from such sidewalks; that the said James Campbell omitted to perform the duties so imposed upon him by the said statute to keep and maintain the said sidewalk in front of his premises in good repair and free from obstruction; whereby, and on the 5th day of November, 1886, one- “ Margaret A. Ferguson, while walking carefully along said street and sidewalk, and without fault or negligence on her part, stepped into-a hole in said sidewalk and was thereby thrown down with great violence, and thereby she was greatly and permanently hurt and injured, * * * and became and was for a long time thereafter sick, lame and disabled, and thereby suffered damagesto a large sum and amount of upward of one thousand and one hundred dollars.” The plaintiff then alleged the death of said James Campbell, and that Margaret Ferguson commenced an action against the city to-recover the damages which she sustained, and that a verdict was-rendered against the city for $1,100 and judgment entered thereon, with costs, which had been paid by the city; that the said defendants had actual notice of the commencement of said action, and that they appeared and assisted in the- defense thereof. The defendants interposed a demurrer upon the ground that the complaint did not ■state facts sufficient to constitute a cause of action.

      Henry J. Sullivan, for the appellant.

      Eugene Van Voorhis, for the respondents.
   Barker, P. J.:

Upon the facts stated in the complaint, the plaintiff was liable to Ferguson for the damages he sustained in consequence of the sidewalk being out of repair. Such liability is founded upon the well-■established principle that a municipal corporation, having the exclusive care and control of the streets, is obliged to see that they are kept safe for the passage of persons and property, and to abate •all nuisances which might prove dangerous; and if this is neglected, ■and any one is injured, it is liable for the damages sustained. The principle upon which such colorations are thus made liable is, that whenever an individual or a corporation, for a consideration received from the sovereign power, has become bound, by agreement, either express or implied, to do certain things, such corporation or individual 'is liable, in case of neglect to perform the agreement, not only to a public prosecution by indictment, but to a private action at the suit of every person injured by such neglect. The grant by the government to the municipality of a portion of its sovereign power, is to be deemed a sufficient consideration for the implied contract, on the part of the corporation, to perform the •duties which the charter imposes, and the contract with the sovereign power enures to the benefit of every individual interested in its performance. (Conrad v. Trustees of the Village of Ithaca, 16 N. Y., 158.)

This is a leading case among the decisions of this State, in establishing the liability of municipal corporations to individuals who have suffered damages in consequence of the public streets being . •out of repair, and has been recognized as authority in all the ¡subsequent decisions on the same subject. (Requa v. City of Rochester, 45 N. Y., 129; Storrs v. City of Utica, 17 id., 104; Robinson v. Chamberlain, 34 id., 389.)

The corporation has, however, a remedy over against the party who caused the street to become in an unsafe condition by placing obstructions therein, or by omitting to discharge any duty imposed by law requiring him to keep the sidewalks or any portion of the street in repair. (City of Rochester v. Montgomery, 72 N. Y., 65; Robins v. Chicago City, 4 Wall., 667; City of Lowell v. Short, 4 Cush., 275; Village of Port Jervis v. First Nat. Bk., 96 N. Y., 550.)

This rule of law was not disputed by the learned counsel for the respondent. His position is this, which is the basis of his whole argument, that the cause of action stated in the complaint is based on the alleged unlawful acts, wrongs and torts committed by the decedent in his lifetime, and did not survive his death within the rule of the common law, that all actions ex delicto die with the person by whom the wrong was done, and in support of his argument cites and relies upon the recent case of Hegerich v. Keddie (99 N. Y., 258). I think that the questions discussed and determined in that cáse have no application whatever to the one under-consideration. It is not alleged in the complaint that the deceased did or caused to be done any affirmative act which in any way contributed to the injuries received by Ferguson for which the plaintiff became liable to her in damages. The deceased was not charged with doing any act which would make him liable, by the rules of the common law, either to the injured party or to indemnify the plaintiff against his liability to such person. By the rules of the common law, no dgty is imposed upon the owner or occupant of land adjacent to a highway or street to improve, repair or keep the same in order. This action cannot be maintained upon the theory that the decedent is a wrong-doer in neglecting to keep the sidewalk in good order. He did not lay down the sidewalk, and had nothing to do with its-construction, at least it is not so charged in the complaint. If the-plaintiff had a cause of action against the decedent in liis lifetime, it must have existed in the provisions of some statute which required him in absolute and unconditional terms to perform some duty in which the public was interested, and which he failed to do, and in consequence thereof the sidewalk became in an unsafe and dangerous, condition. The. plaintiff bases its claim for indemnity upon the terms of its charter, which charged the defendant with the unqualified duty and obligation to keep the sidewalk in front of his premises in good repair, and that he was primarily liable to the injured party because he failed' to perform the statutory obligation. The charter in force when the accident happened provides that “ it shall, in all ■cases, be the duty of the owner of every lot or piece of land in said city to keep the sidewalks adjoining his lots or piece of land in good repair, and also to remove and clean away all snow aiid ice or other obstruction from such sidewalk, and to keep half the street or alley adjoining the same free from obstruction or obstacle. * * * The superintendent of streets shall have the power to repair any ■sidewalk where the owner of the property shall neglect to repair the same for five days after written notice so to do has been served on him personally, or at his residence, if his residence be known and he live in the city, or otherwise after being left on the premises. * * * The street superintendent shall have the power to collect the expense of any such work or repair from the owner of the property, and he shall send such owner, if his' address be known, a bill of the amount thereof.” (Laws of 1881, chap. 343, § 11, amending § 218 of the charter.)

By other provisions the mode and manner of collecting the ■expense of repairs is provided for. The duty of vigilance is imposed upon the landowner to see that the sidewalks adjacent to his property are kept in good repair, and this obligation is imperative, and depends upon no condition whatever. It cannot be doubted but what the legislature had the power to impose a duty of this nature upon the ■owner of lands situated within the limits of a municipal corporation. The power conferred upon the corporation is supposed to be for the ■benefit of property owners as well as for the inhabitants residing within the city limits. The obligation imposed by the statute is, in the nature of a tax upon the property of the owner for the purpose of keeping the public streets in repair, which the legislature, had the undoubted right to impose. This law was enacted for the protection of all the public using the sidewalks in the city of Rochester, and any person injured by reason of the neglect of the landowner to keep the sidewalks in front of his premises in good repair is liable to an action for the damages which he has suffered, if he himself is free from contributory negligence. The principle upon which such liability is based, as stated in the cases already cited, is simply this, that where a person is charged with the performance of a duty, he is liable for his neglect to perform the same to any one •sustaining special damage in consequence thereof. (Robinson v. Chamberlain and Conrad v. Village of Ithaca, supra)

Upon the facts stated in the complaint, Ferguson had her election to proceed against the city or the owner of the property. She elected to proceed against the city, and recovered a judgment for her damages, which the city paid, and it has a remedy over against the personal representatives of Campbell, who was primarily liable. (Village of Fulton v. Tucker, 3 Hun, 529; City of Boston v. Worthington, 10 Cray, 499; City of Rochester v. Montgomery and Robins v. Chicago City, supra)

The statutory obligation is in the nature of a contract between the landowner and the public, and an action for a breach of the performance survives the death of the obligor. We do not have before us for consideration on this appeal, any question relative to the 'measure of damages or the rules of evidence applicable to the ease.

Judgment should be reversed and the demurrer overruled, with costs of this appeal and of the demurrer, and on payment of the same within twenty days after the service of a copy of this order, the defendants may withdraw their demurrer and interpose an answer to the plaintiff’s complaint, and on a failure so to do judgment absolute is ordered for the plaintiff. :

Dwight and Macomber, JJ., concurred.

Interlocutory judgment reversed and demurrer overruled, with leave to defendant to withdraw demurrer and answer over on payment of costs.