text:
    POMEROY P. DICKINSON and others, Appellants, v. THE WATER COMMISSIONERS OF THE CITY OF POUGHKEEPSIE, Respondents.
    Oont/ract— construction of— “hard pan”

    Under a contract, providing for earth excavation at one price and rock excavation at-another, and that work not therein classified shall be paid for at cost and fifteen per cent added; Held, to be error to exclude evidence that “ hard pan ” was neither rock nor earth.
    Appeal from a judgment in favor of the defendant. The action was brought to recover for work done, in removing material from the water space of the reservoir in Poughkeepsie.

      A. Anthony, for the appellants.

      Thompson & Weeks, for the respondents.
   Tappen, J.:

The plaintiff entered into a contract in writing with the defendants, for work on a reservoir, and which contract contained the following clause: “Work not herein classed or defined as to price, and which said contractors may be directed by said engineer in writing to do, shall be paid for at cost and fifteen per cent added.” The contract provided for earth excavation at one price, and rock excavation at another price. The plaintiff brought this action to recover compensation for other excavations which he claimed were not rock or earth, and were therefore not classed. The excavation in dispute was known as hard pan. At "the trial, the plaintiff offered to prove that it was neither rock nor earth, and not included in those items in the contract. The court refused to admit the testimony, and nonsuited the plaintiff. We are of opinion that such testimony was admissible and that its rejection was error.

The judgment should, for that reason, be reversed, and a new trial ordered, costs to abide event.

Present — Tappen and Talcott, JJ.

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


source: Caselaw Access Project

author: Tappen, J.:

license: Public Domain

text:
    EMILIE LESLIE, Respondent, v. THE KNICKERBOCKER LIFE INSURANCE COMPANY, Appellant.

      Premium of insurance — defamlt in payment of misiny from acts of company, not a

    Where the officers of an insurance company are asked by a party beneficially interested in a policy, when a payment of premium will be due, and agree to inform the applicant of the time, and do not give such information, and the time of payment passes by; Md, that the company can not set up such default as a defense to the payment of the policy, as their act was calculated to and did mislead the plaintiff; nor, in such case, can the company set up that there was a want of consideration for the promise.
    .Appeal by the defendant from an order denying defendant’s motion for a new trial on the judge’s minutes, and from the judgment entered in the action in favor of the plaintiff. The facts are stated in the opinion.

      H. W. Johnston, for the appellant.

      A. W. Parker, for the respondent.
   Tappen, J.:

The defendants issued a policy for $3,000 on the life of James Leslie, payable on his death to his wife Sarah, provided the premium was paid half-yearly thereon, as specified in the policy. James Leslie survived his wife, and, on her death, became the owner of the policy; and the defendants loaned him $300, upon a pledge of the policy as security. Between June, 1865, and October, 1868, the policy, by various mesne assignments, became vested in the plaintiff, subject to defendants’ lien. The plaintiff, not having possession of the policy, or means of knowledge as to due dates of the premium, which she was desirous of paying, caused inquiries to be made of the defendants, at their office, where the policy then was; and such information was not communicated to her, but promise was then made by persons in charge at defendants’ office, that such information would be sent her; it was not sent. These inquiries on behalf of plaintiff, were made in April and June, 1870; and on each occasion she was prepared and intended to pay premium on policy, and interest on the $300 loan. When she inquired, in June, the defendants’ officers said that the day of payment had passed, and they refused the tender then made by plaintiff, basing the refusal on the ground that the policy had been canceled by non-payment of premium. Plaintiff renewed the tender in December, 1870, and it was refused; and, in March, 1871, James Leslie died. Upon these facts, the plaintiff had a recovery at the Kings Circuit.

The defense interposed by the answer, is, the non-payment of premium which became due June 3d, 1870, and the denial of any promise to send to the plaintiff notice when premium became due. The chief question presented by the defendants for review, is, as to the force of the alleged promise to give plaintiff notice or knowledge of time premiums became due. The defendants claim that the promise was gratuitous, of no binding force, and that defendants are not liable thereon. The defendants claim that a policy, on which they had. been receiving premiums for thirteen years, is forfeited by the omission to pay a half-yearly premium, due June 3d, 1870; that the omission to pay operates to discharge the contract. The plaintiff says and proves that the omission to pay was occasioned by the act of the defendants. The fact of the defendants’ possession of the policy, justified the plaintiff in having recourse to them for that information, on which she must act and rely to enable her to keep the contract. They promised so to inform her; they had knowledge, and, so far as it appears, exclusive knowledge of the essential fact whereof information was sought. They .promised to send that information to her. Now, whether this was or was not a gratuitous promise, it aided in the creation of that default in payment, on which defendants rely to defeat the policy. This act of the defendants was calculated to, and did, mislead the plaintiff. It prevented, or tended to prevent, the plaintiff from performing an obligation toward the defendants which she was endeavoring, in good faith, to perform; and, under such circumstance, the law will not permit the defendants to say there was no consideration for the promise. And this proposition may be illustrated in two ways: if, in answer to plaintiff’s inquiry, the defendants’ officer had stated the day of payment as being later than it actually was, and the plaintiff, acting on that information, had ten-, dered payment at the later day, the defendants could not have: avoided the policy; or, defendants having promised to notify' the' plaintiff, in answer to an earnest inquiry which the plaintiff then made for the necessary information, with intent then and there to pay the premium, such unperformed promise being then relied on by the plaintiff^ will have the effect of preventing a forfeiture of' the policy. Oases analogous in principle uphold this view, on the ground of equitable estoppel. '■

The policy was a life policy, because of the following- clause: “It is hereby agreed that this policy may be continued in force from time to time, until the decease of the said James Leslie, provided the assured shall duly pay, etc., the half-yearly premiums due third June and December.” And, the default in payment not being attributable to the plaintiff, she may recover within the principles in Cohen v. Mutual Ins. Co., and Sands v. New York Ins. Co.

Howell v. Knickerbocker Life Ins. Co. is cited by appellant, but it does not aid the defense. The plaintiff’s right to recover is not upon a naked or gratuitous promise of the defendants, but it is because the defendants caused, or contributed to, the plaintiff’s omission to pay the premium the day it was due; and defendants cannot avail themselves of, or base a defense on, a situation created-by themselves. The judgment should be affirmed, with costs.

Present—Tappen and Talcott, JJ.

Judgment affirmed, with costs.

      Manufac. Bank v. Hazard, 30 N. Y., 226; Plumb v. Cattaraugus Ins. Co., 18 id., 392.

       50 N. Y., 610.

       Id., 026.

      44 N. Y.,276.


author: Talcott, J.:

text:
    STEPHEN HAYNES, Respondent, v. HORATIO G. ONDERDONK, Appellant.

      Oode, § 449 — determination of claims to real property—When action for, commenced—what must be proved in.

    An action for the determination of claims to real property, is to be deemed commenced, for the purpose of operating as constructive notice to purchasers from the defendant, from the time of the filing of the notice; but, as against a resident defendant, it is commenced when the summons is personally served, or delivered to an officer with the intent that it shall be actually served.
    Where, upon the trial of such an action, it appears that the plaintiff was neither the owner, nor in possession of the premises in question, at the time of the commencement of the action, the complaint should be dismissed, with costs.
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.

      H. G. Onderdonk, for the appellant.

      D. P. Barnard and Morris & Pearsall, for the respondent.
   Talcott, J.:

This is an action commenced under section 449 of the Code, for the determination of claims to real property. The provisions of the section are, in substance, that cases falling within the provisions of the Revised Statutes on this subject may be prosecuted by action under the Code, without regard to the forms of proceeding prescribed by the Revised Statutes. This remedy, as is held in Burnham, v. Onderdonk does not at all abrogate or repeal the provisions of the Revised Statutes, relating to proceedings to compel the determination of claims to real property, in the manner and form therein prescribed, but merely affords another and cumulative remedy. When an action is commenced for such a purpose, no regard is to be had to the forms of the proceedings, prescribed by the Revised Statutes for obtaining relief in similar cases. This is expressly so declared by the section of the Oode which authorizes an action in such a case. It seems, therefore, inevitably to follow, that when the party resorts to an action in such a case, he subjects himself to all the rules of pleading and proceeding, which are incident to other actions, and is under the necessity of making and sustaining such allegations as are essential to the existence of his cause of action as in other cases; and that all or any of the facts which are requisite to enable him to commence and maintain the action, may be- traversed and denied by the defendant, and will thereupon become material issues in the case. Such seems to have been the construction which the courts have put upon section 449, as is held amongst other cases, in Peck v. Brown and in the very recent case of Austin v. Goodrich.

This action is brought under the Code. In it the plaintiff seeks, and has obtained, a judgment against the defendant, barring the defendant and all persons claiming under him, by title accruing subsequent to the commencement of this action, from all claim to any estate of inheritance, or freehold, or for a term of years not less than ten, in possession,' reversion or remainder, in and to fhe premises described in the complaint. To maintain the action, it is essential that the plaintiff should claim an estate in the premises, in fee or for life, or, by the amendment of 1848, “ for a term of years not less than ten.” And whether the plaintiff hath such an estate is material. No such fact is found in this case, and the existence of any such fact, at the commencement of this suit, was conclusively disproved by the defendant under his answer, alleging that at the commencement of the suit, the plaintiff was neither the owner of, nor in possession of, the premises in question. We think, therefore, that the complaint should have been dismissed with costs, as in other actions, where the cause of action is not made out, but is disproved. Whatever may be true, under the provisions of the Revised Statutes on this subject, an action cannot be maintained where no cause^of action exists. It seems that the plaintiff caused to be. filed a copy of the complaint and summons, with a notice of the pendency of the action, on the 12th day of August, 1869, the same day on which he conveyed away all his interest in the premises; and this, it would seem by his testimony, was with a view of being able to maintain this litigation in his own name, after having parted with his interest. But the filing of the summons and complaint was not the commencement of the suit for this purpose. Section 132 of the Code declares that, for the purpose of operating as constructive notice to purchasers, etc., from the defendant, the action shall be deemed pending from the time of the filing of the notice. For other purposes, an action is commenced against a resident defendant, when the summons is personally served, or delivered to an officer with the intent that it shall be actually served. The foregoing views, if correct, render it unnecessary to examine the question, whether the lien claimed by the defendant, was such an estate as authorized the commencement of the suit against him. It is possible that the legislature intended to authorize the litigation of the validity of tax sales upon the provisions of the acts in relation to the determination of claims to real property, but 'before we undertake to so hold, the question must be necessarily presented.

This judgmen t must be reversed, and a new trial ordered, costs to abide the event.

Present — Barnard, P. J., Talcott and Tappen, JJ.

Judgment reversed, and a new trial ordered, costs to abide event.

      41 N. Y., 435.

       § 449.

       26 How., 350.

      49 N. Y., 266.

       Austin v. Goodrich, supra.


text:
    ANN J. BOYLSTON, Respondent, v. ANDREW S. WHEELER, Appellant.

      Goda, § 449 — determination of claims to real property — what must he proved in, action for, brought under the Gods.

    The action to compel the determination of claims to real property, authorized under section 449 of the Code, is not a substitute for proceedings under the Revised Statutes, and the right to institute those proceedings is left unimpaired and in full force. The remedy by action is an additional or cumulative remedy, to be adopted by a party at his election.

      Bwrnham v. Onderdonk (41 N. Y., 425) followed.
    The complaint in this action alleged that the defendant claimed title to the premises in question for a term exceeding ten years, which allegation was denied by the answer. Upon the trial of the action the plaintiff introduced in evidence a notice, addressed to her, purporting to be signed by the defendant, stating that he held a certificate of sale for non-payment of the regular water rates upon the premises in question, and requiring the plaintiff to redeem the same within the time allowed by law, or that the sale would become absolute. No evidence was given to prove the genuineness of the notice, except that one of plaintiff’s witnesses testified that the paper appeared to be from the defendant’s place of business, and that he presumed that it came from his office. Held, that this evidence was insufficient to prove that defendant claimed any title to the premises.
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.
    This action was commenced by summons and complaint, for the. determination of an alleged claim or claims by the defendant to an estate for a term of years in certain real estate, in the .city of Brooklyn, alleged to be owned by, and in the actual occupation of, the plaintiff. Hpon the trial, the plaintiff, to prove that she had been in the actual possession of the premises for the three years preceding the commencement of the action, introduced in evidence two judgments of this court, entered on the 9th of March and the 7th of May, 1872, in her favor, against the defendant, with reference to the same premises, the first of the judgments embracing a portion, and the second the remainder, of the lands described in the complaint in this action. The title and source of title alleged by the plaintiff in this action, are the same as those set up and adjudged in the said former actions.
    Other facts are stated in the opinion.

      A. H. & W. E. Osborn, for the appellant.

      D. P. Barnard, for the respondent.
   Talcott, J.:

This is an action commenced under section 449 of the Code, to compel the determination of claims to real property. It is settled, as we understand it, that such an action is not a substitute for proceedings under the Revised Statutes, but that the right to institute those proceedings is left unimpaired and in full force, and that the remedy by action is another and additional or cumulative remedy, to be adopted by a party at his election. When a party avails himself of the right to commence an action in such a ■case, the forms of proceeding under the Revised Statutes are no longer to be regarded, and in no respect control the forms of pleading or the proceedings in the action, but the action is governed by ■the rules applicable to other actions. The plaintiff must aver and prove his cause of action, as in other cases. And all allegations essential to the cause of action are traversable, and may be put in issue by the pleadings, We have so held in the case of Haynes v. Onderdonk, decided at the present term of the court. It is unquestionably essential to the maintenance of such an action that the plaintiff should allege and prove, if the allegation is denied, that the defendant unjustly claims title to the premises in question, in fee, for life, or for a period exceeding ten years. Accordingly, the complaint in this action alleges that the defendant ■unjustly claims an estate in the premises described, for a term -exceeding ten years. By the provisions of the Code, an answer ■may contain a general or specific denial of each material allegation in the complaint. Such a denial is contained in the answer in this case, for, by it, the defendant, amongst other things, denies each and -every allegation in the complaint contained. This, upon the principles governing actions, threw upon the plaintiff the onus of establishing that the defendant made some claim to an estate in the premises, or some part thereof, for a term exceeding ten years. Was such proof made? Clearly not. The plaintiff introduced sundry papers referring to different portions of the premises, of which the case contains a specimen, showing the form of each. It is as follows:

“ Brooklyn, Oct. 17, 1872.

Please take notice that I hold certificate of sale for non-payment of regular water rates, for 1869, upon property on the south side of Flushing avenue, between Nostrand and Marcy avenues. Recorded in the office of the Nassau Water Department, in Register 8, Nos. 2502, 2504 and 2505.

“ You are required to redeem the same within the time allowed ' by law, or the sale will become absolute.

“A. S. WHEELER, Purchaser.

“ 377 Fulton street, directly opposite the City Hall, room No. 5. Office hours, 9 to 12 a. m.

“ To Mrs. A. J. Boylston.”

■ Waiving the question whether this notice, if shown to have been given by the defendant, would prove the fact that the defendant did claim thereby any estate in the premises described, or any part thereof, in fee, for life, or for a term not less than ten years, it seems to be clear that there was no sufficient evidence that the defendant ever gave such notice or had any knowledge of it. This paper, if it is to be the foundation and cause of an action against the defendant, especially to charge him with setting up an illegal and unjustifiable claim to the estate of another party, should be proved to have emanated from the defendant, by at least as strong evidence as would be sufficient to charge the defendant, if the paper in question was claimed to be the promissory note or other contract of the defendant. No such evidence was given. No attempt was made to prove the genuineness of the notice. All that the witness was enabled to testify on the subject was, that the papers appeared to be papers from the defendant’s place of business, and that he presumed that they came from the office of the defendant. This testimony, or its equivalent, might have been truthfully given by any of the bystanders, who had never before seen or heard of the defendant, and upon a simple inspection of the paper. When we consider that this is not a proceeding under the Revised Statutes, where the defendant could not be barred of any title or claim, except it fell precisely within the statutory description of the estate, which it is necessary the defendant should claim, in order to authorize the proceedings, and where, as stated by Justice Woodruff in Burnham v. Onderdonk, if the estate claimed did not fall within the description, the proceeding would be innocuous ; but that the judgment sought in this action is the judgment of a court of general jurisdiction, to take cognizance not only of adverse claims to real estate, but of clouds upon, and other embarrassments affecting the title to lands, and that the parties to the action are conclusively bound by the judgment until it is reversed, we cannot but feel the propriety and necessity, in regard not only to pleading, but evidence, of adhering to the well settled rules applicable to actions at law; and we are of the opinion that the plaintiff gave no evidence that the defendant made any claim to an estate in fee, or for life, or for a term not less than ten years, in the premises in question, sufficient to put defendant upon proof of his title; and that the exception of the defendant on that ground was well taken. We do not see what the former judgments had to do with this case, except as they established the title and possession of the plaintiff, at the time of the recovery thereof. If it be true, that the claim of title by the defendant is the same claim of title litigated in the former suits, as to which the case is not precisely intelligible to us, it would seem to be clear that no other action can be maintained against the defendant for the same cause. As to the cause of action upon which the former recovery was had, transit im, rem judicatem. And there seems to be no reason why the general rule, that no party should be twice vexed by action at law for the same cause, should not apply to the cause of action claimed by the plaintiff, as well as any other. Entertaining the foregoing views, which render a new trial in this case unavoidable; learning from the briefs of the counsel that the former actions between these parties are pending and undetermined in the Court of Appeals ; in view of the probability of their determination by the court of last resort, before a new trial in this action will take place, we avoid the discussion of the question whether the purchase of property at a tax sale, and the holding merely of the scrip therefor and giving the usual notice to redeem, is such a claim of an estate as is actionahle under the law. The judgment is reversed and a new trial ordered, costs to abide the event.

Present — Barnard, P. J., and Talcott, J.

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

       Burnham v. Onderdonk, 41 N. Y., 435.

      Peck v. Brown, 26 How., 350; Austin v. Goodrich, 49 N. Y., 266.

      41 N. Y., 425.


text:
    JOHN DICKINSON, Plaintiff, v. ELLEN VANDERPOEL and another, Defendants.

      Nonjoinder of parties plaintiff—how defect must he taken advantage of.

    This action was brought by the plaintiff, the lessee of a store, to recover damages for injuries to his goods, occasioned by the heat from a steam boiler, placed in the basement of the building by the defendant, his lessor. Upon the trial it appeared that the plaintiff had a partner, and that the property injured belonged to the firm. The court dismissed the complaint on the ground of the nonjoinder of the partner. Held, that this was error. When the defense of nonjoinder of parties plaintiff exists, and is not disclosed by the complaint, it must be set up in the answer.
    Motion for a new trial, on exceptions ordered to be heard in the first instance at the General Term. The plaintiff took a lease of certain basement rooms, in the city of New York, from the defendants, and occupied them as a place for selling stationery and toys. Shortly after the plaintiff went into possession of the rooms, the defendants caused to he constructed, in the cellar of the building, a heating apparatus, which generated so much heat as to greatly injure the plaintiff’s stock of stationery and toys. Upon the trial it appeared that, prior to the making of the lease, the plaintiff and one Dunscomb formed a partnership to hire the premises and sell toys and stationery therein, and that the lease was taken on account of the partnership, in the name of the plaintiff. That the business of the partnership was prosecuted therein, from the time of taking possession until some time after the commencement of this action, and that the property injured was partnership stock. The court dismissed the complaint on the ground that Dunscomb was a necessary party plaintiff.

      James L. Campbell and C. C. Wust, for the plaintiff.

      Tracy & Tallmadge, for the defendants.
   Talcott, J.:

This is an action brought by the plaintiff, who was, in form at least, the sole lessee of certain premises, to recover damages against the lessors, for placing a steam boiler under the premises leased to the plaintiff, whereby, as alleged, the plaintiff’s goods, in the store above, were injured and damaged by excessive heat. It appeared on the trial that the plaintiff had a partner in the business. The non-joinder of such partner was not, in any manner, disclosed by either the complaint or answer. The rule seems to be well settled, that when the defense of non-joinder of parties plaintiff exists, and is not disclosed by the complaint, it must be brought forward in the answer. The judge at the trial dismissed the complaint, upon the ground of the non-joinder of the partner. This was erroneous whether the plaintiff would have been able to maintain the action in his sole name or not, if all the facts had been pleaded. This is a motion for a new trial, the exception having been sent to the General Term, in the first instance.

A new trial is ordered; costs to abide the event.

Present—Barnard, P. J., Talcott and Tappen, JJ.

New trial ordered, costs to abide event.

       Bank of Havana v. Magee, Op. of Comstock, J., 20 N. Y., 362; Zabriskie v. Smith, 13 id., 322; Code, §§ 147, 148.


text:
    In the Matter of THE CITY OF BROOKLYN and TEUNIS G. BERGEN and others, Commissioners, Appellants, v. JOHN A. LOTT and others, Respondents.

      Assessments by municipal corporations—not to be extended beyond corporate limits.

    Where the legislature has authorized public improvements to be made by a municipal corporation, and an assessment of the expenses thereof upon other territory, and the authority to assess has been general, to assess the expenses upon the lands deemed benefited by the improvement, the authority to assess does not extend beyond the limits of the municipality.
    Appeal from an order made at Special Term, vacating the report and assessment of commissioners, assessing property for the expense of Prospect Park, so far as they related to property “ not within the territorial limits of Brooklyn.” The appeal was taken by the city of Brooklyn and the commissioners of Prospect Park.
    Tracy, Catlin & Brodhead, for the appellants.

      E. F. Hyde, for the respondent, Duryea.

      A. & J. Z. Lott, for the respondents, John A. Lott and others.

      Philip S. Crooke, for other respondents.
   Talcott, J.:

On a careful examination of the numerous acts of the legislature concerning Prospect Park, etc., in the city of Brooklyn, we are unable to discover any indication that the legislature intended ,to authorize the assessment of any portion of the expense' of acquiring the title to and constructing the said park, upon the property situated in the adjoining town of Flatbush; but on the contrary we find many provisions of those laws, which seem to be wholly inconsistent with such an intention. The land is to be acquired for and in behalf of the city of Brooklyn. The receipts from it, when any portion of it is sold or rented, are to be paid into the treasury of Brooklyn. In the original and preliminary act of 1859, although the commissioners are authorized to select for such purpose lands outside of the city, they are nevertheless required to make such selection and location, “in view of the present condition and future growth and wants of said city” of Brooklyn, and not for the benefit of any other place. And, in the act of 1860, the lands selected and taken for the purpose, and then lying outside of the city limits, are annexed to and made to form a part of the city. And, in the act of 1866, “ to extend the boundaries of Prospect Park in the city of Brooklyn,” under which the board of commissioners were authorized, “ for and in behalf of said city,” to acquire title to the lands situated partly in the city and partly in the town of Flatbush, it is provided that the lands thus taken shall be deemed to have been taken by the city of Brooklyn. The title is vested, .in fee simple absolute, in the city of Brooklyn. The lands are annexed to, and made to form a part of the city, and the assessment is confined to the city. This is the apparent spirit and purpose of all the legislation on the subject. It is true, in some of the acts, the assessments are authorized to be made upon any lands outside of the park. These words, standing by themselves, and disconnected from the subject-matter, might seem to authorize an assessment upon lands in the city of New York, or any other part of the State which the commissioners might think had been benefited by the construction of Prospect Park. But this language seems to have been used only to extend over the whole city the area of assessment, instead of confining it to the western district, and cannot be presumed to have intended to authorize an assessment upon the lands of other towns, for whose benefit the legislature does not suggest that the lands have been condemned. It is true, as a matter of fact, that lands lying beyond the limits of a city, may be, and usually are, more or less benefited by improvements of a public character within the city, but it has not been hitherto the policy of the legislature to compel the suburban districts to pay the expenses of such improvements. In most cases, it will be found that, where the legislature has authorized public improvements to be made by a municipal corporation, and an assessment of the expenses thereof upon other territory, the authority to assess has been general, to assess the expense upon the lands deemed benefited by the improvement. Yet it has never before, so far as we are aware, been claimed that the authority to assess extended beyond the limits of the municipality. Whatever the commissioners may have thought, we fail to discover any legislative recognition of the fact that any lands in Flatbush were to be benefited by the construction of Prospect Park, or that any portion of the expense was authorized for the benefit of the town of Flatbush, or any of the lands therein, unless it be those which were authorized to be taken and annexed to the city of Brooklyn; and we think the order appealed from should be affirmed, on substantially the same grounds expressed in the opinion delivered at the Special Term.

Order affirmed, with ten dollars costs.

Present — Barnard, P. J., Talcott and Tappen, J J.

Order affirmed, with ten dollars costs.

       Session Laws of 1859, chap. 466.


author: Talcott, J.;

text:
    LEWIS W. JAMES, Respondent, v. HENRY HAMILTON, Appellant.

      Contractfor sale of stock — when not deemed executory.

    The plaintiff delivered to the defendant a bill of sale of certain stock, which recited that the stock had been that day transferred to the defendant, but that the plaintiff was to hold the same for tire payment of a note, given by the defendant for the purchase-price of the stock, and which bill of sale also contained an agreement on the part of the plaintiff to deliver the stock upon the payment of the said note. In this action, brought upon the note after its maturity, held, that the agreement implied a present and executed sale of the stock, with the agreement that the plaintiff should hold the same as collateral to the note, and that it was unnecessary for him to make any tender of the stock, or any formal transfer thereof on the books of the company, until the defendant’ should have paid the note, or, at least, tendered the amount due thereon.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury.
    On the 1st. day of November, 1870, the plaintiff and defendant entered into an agreement for the sale of certain stock, in pursuanee of which, the plaintiff delivered to the defendant the following agreement:
    Williamsbttbgh, November 1st, 1870.
    I do hereby agree to deliver to Henry Hamilton, of Brooklyn, E. D., 500 shares, as follows:
    Certificate Ho. 160, for.......................... 100 shares.
    Certificate Ho. 197, for........................... 100 “
    Certificate Ho. 149, for.......................... 100 “

    Certificate Ho. 159, for........................... 200 “
    of the Grand Street and Hewtown Railroad Company, of Brooklyn, E. D., upon the payment of a certain note of the said H. Hamilton, dated Hovember first, for four thousand seven hundred and fifty dollars ($4,750), the said stock having been this day transferred to the said Hamilton, and to be held by me for the payment of said note.
    LEWIS W. JAMES.
    On the same day the defendant made and delivered to the plaintiff his note for the sum of $4,750, for the recovery of which sum, this action was brought.

      Dailey & Perry, for the appellant.

      Britton, Ely & Snell, for the respondent.
   Talcott, J.;

This was an action upon a note, given on the" sale of stock of the Grand Street and Hewtown Railroad Company. At the time of the making of the note, the plaintiff delivered to the defendant a bill of sale of the stock, reciting that the stock had been that day transferred to the defendant, hut that the plaintiff was to" hold the same for the payment of the note, and containing an agreement on the part of the plaintiff to deliver the stock, specifying the particular certificates, upon the payment of the note. The defendant seeks to treat this as an executory agreement for the sale of the stock, and objects that the plaintiff has never made an actual tender of the certificates, or caused the same to he transferred to the defendant on the books of the railroad company. We think this is not the true interpretation of the papers; but that they import a present and executed sale of the stock, with the agreement that the plaintiff should hold the same as collateral to the note; and that it was unnecessary for the plaintiff to make any tender of the stock, or any formal transfer thereof on the books of the railroad company, until the defendant should have paid the note; or at least until he should tender the amount due thereby. Ho fraud or misrepresentation as to the title to the stock is claimed in the answer, but only that the stock has not been, in fact, transferred or tendered to the defendant. These views seem to answer all the objections and exceptions presented by the defendant, who, in case the plaintiff’s title to the stock should fail, will have his action to recover the value of it when he shall have paid his note.

The judgment is affirmed.

Present—Babnard, P. J., Talcott and Tappen, JJ.

Judgment affirmed.


text:
    THE PEOPLE ex rel. GEORGE W. HALLOCK v. BRINLEY D. SLEIGHT, Justice of the Peace.

      Justices' Oowrt—judgment in—cannot be reviewed, by eertiormi,.

    A judgment rendered by a Justices’ Court cannot be reviewed by a common law certiorari. The only mode of reviewing such a judgment is by appeal, as provided in chapter 5 of the Code, section 351.
    Cebtioeaei to review a judgment recovered in a Justices’ Court against the relator, for a penalty.
    The facts are stated in the opinion.

      George Miller, for the relator.

      George W. Whitaker, for the defendant.
   Talcott, J.:

This proceeding is an attempt to review the judgment rendered by a Justices’ Court, by means of a common law certiorari. The certiorari appears to have been issued without any application for the same, or any allowance by the court, but merely at the option of the attorney of the party against whom judgment was rendered in the Justices’ Court, and for the reason that the time for appealing had expired. The writ must be quashed. It is expressly provided by law, that the only mode of reviewing such judgments is by appeal, as provided in chapter 5 of the Code of Procedure.

Certiorari quashed, with costs against the relator.

Present — Barnard, P. J., Talcott and Tappen, JJ.

Writ quashed, with costs against relator.

       Code, § 351.


text:
    JOHN WAGNER, Respondent, v. THE LONG ISLAND RAILROAD COMPANY, Appellant.

      ■Surface water — rigid of owner of land to arrest the flow of—Water-course — what is.

    The plaintiff is the owner of land, lying within the angle formed by the intersection of a highway with an embankment, constructed on the lands of the defendant, upon which its tracks are laid. Prior to the construction of the embankment, largo quantities of water flowed, during the winter season and in very rainy weather, along the highway, and passed the land of the plaintiff without collecting there. The embankment prevented this water flowing off the land of the plaintiff, and caused it to collect thereon. In this action, brought by the plaintiff to recover damages for the injuries occasioned thereby, held, that he could not recover.
    No action will lie against a party for so using or changing the surface of his own land, as to dam up and obstruct the flow of surface water which has been accustomed to flow over and across the land of his neighbor.
    What is necessary to constitute a water-course considered.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a j my, and from an order denying a motion for a new trial, made upon the judge’s minutes.
    This action is brought by the plaintiff, as the owner and occupier of a tract of land and house thereon in Suffolk county, to recover damages to the premises and property of plaintiff from an overflow of water thereon, occasioned by an embankment constructed upon the land of the defendant. The plaintiff and defendant are adjoining owners, the land of defendant being used for a railroad track, which is crossed by a highway, also adjoining the plaintiff’s land. Prior to the construction of defendant’s railroad, during the winter season, large quantities of water flowed from some distance above the plaintiff’s premises, along and parallel with the highway, and passed plaintiff’s premises without collecting there. Defendant’s railroad was constructed at this point in 1869 and 1870, and where it adjoins plaintiff’s land, an embankment was raised, upon which the track was laid, which embankment formed an angle with the highway, which, at certain seasons of the year, prevented the water from flowing off plaintiff’s land, and caused it to collect thereon. The complaint alleges that defendant was negligent and unskillful in constructing the railroad embankment and raising the highway, and should have provided pipes or other suitable means to . carry off’ surplus water which might at any time accumulate between the embankment and raised highway; and that, by reason of this negligent and unskillful construction, large quantities of water accumulated between the said railroad embankment and raised highway, on, and overflowed plaintiff’s land, and ran into his house on the days named, and caused the damage complained of.
    The answer avers that the railroad at the place is properly and skillfully constructed with reference to the nature of the ground, etc.; and that there is no obstruction, by the said railroad or highway crossing, of any natural stream of water; and that the water alleged to be obstructed, was not any other than surface water, at and after extremely wet and rainy weather, and during winter and spring freshets. The defendant moved for a nonsuit, on the ground that plaintiff had failed to prove the obstruction of a natural stream of water, and that defendant was not required to have a passage for surface water through its lands. The court denied the motion, and defendant excepted. After the charge of the court, to which various exceptions were taken, a verdict was found for plaintiff.

      R. S. Green, and Wm. Wickham, for the appellant,
    cited, as to the right of the defendant to construct the embankment, Goodale v. Tuttle (29 N. Y., 466); Waffle v. N. Y. C. R. R. Co. (58 Barb., 413); Luther v. Winnisimmet Co. (9 Cush., 171); Ashley v. Wolcott (11 id., 192).

      George W. Whitaker, for the respondent.
   Talcott, J.:

This is an action to recover damages against the defendant for constructing the embankment for its road along and across the adjoining land of the plaintiff, whereby the usual flow of the water across and off from the plaintiff’s premises, was damned up and obstructed, and caused to accumulate, whereby the plaintiff sustained damage. It seems to be perfectly well settled, that no action will lie against a party for so using or changing the surface of his own land, as to dam up and obstruct the flow of surface water, which had been accustomed to flow over and across the land of his neighbor. The question involved in the case, is precisely the same in principle as that which came before the Supreme Court of Massachusetts, in Parks v. The City of Newburyport. In that case, the judge on the trial had instructed the jury, that if, for twenty years, the water accumulating on the land in the rear of the lots in question, had been accustomed to find its outlet over the land of the defendants, and the same had been obstructed by the acts of the defendants, in such a way as to turn it from their own land across land of the plaintiff, and occasion substantial injury to the property of the plaintiff, without his fault, or want of care on his part, then the defendants would be liable. The plaintiff having recovered under this instruction, the verdict was set aside upon the ■ following opinion by the court: The declaration is for obstructing a water-course, and the instruction allowed the jury to ’ find for the plaintiff, though there was no water-course. No action will lie for the interruption of mere surface drainage.” These principles, in the abstract, were conceded by the learned justice who tried the cause; but we think the defendant was deprived of the benefit of them by the refusal to nonsuit, and by certain instructions which were given to the jury. It was left to the jury to find, upon the evidence, whether there existed a water-course which the defendant had obstructed. We think this was erroneous in the case, both upon the pleadings and the evidence. First, it is to be observed, that the plaintiff did not, in his complaint, claim that there had existed over this land any stream or water-course which the defendant had obstructed. He says that “ prior to the construction of such embankment, during the winter season, la,rge quantities of water flowed some distance above the plaintiff’s-premises, along and parallel with the aforesaid highway, and passed the plaintiff’s premises without collecting there.” This is a statement which seems plainly to mean that such had been the natural flow of the surface water; and such, we think, the evidence on the part of the plaintiff plainly showed it to be in fact. The plaintiff’s complaint was plainly founded on the theory that the defendant could not lawfully make any embankment on its own land, which would so obstruct the natural flow of surface water during thaws and freshets as to cause it to accumulate on the land of-the plaintiff, but was bound, by means of sufficient culverts, or otherwise, to provide some means whereby this water should be disposed of. And the gravamen of the plaintiff’s action was the alleged negligence, of the defendant in constructing its embankment without providing sufficient pipes and culverts to discharge the surface water. A water-course, according to the definitions of the authorities, consists of bed, banks and water; yet, the water need hot flow continually; and there are many water-courses which are sometimes dry. There is, however, a distinction to be taken, in law, between a regular, flowing stream, of water, which, at certain seasons, is dried up, and those occasional bursts of water, which, in times of freshet or melting of ice and snow, descend from the- Jiills and inundate the country. To maintain the right to a water-course or brook, it must be made to appear that the water usually flows in a certain direction and by a regular channel, with banks or side's. It need not be shown to flow continually, as stated aboveand it may at times be dry, but it must have a well defined and substantial existence.” Water flowing through a hollow or ravine, only in times of rain or melting of snow, is not, in contemplation of law, a water-course,

The plaintiff as we think, not only failed to allege, but also, to give any evidence tending to show the existence of any watercourse which the defendants had obstructed ; and the motion for a nonsuit should have been granted. We think, also, that portions of the charge excepted to were calculated to mislead the jury. In one portion of the charge the court, after having submitted to the jury the question as to whether there was a living, running stream obstructed by the embankment, said: “ You are to say whether this was practically a running stream, over which the railroad company were bound to build a culvert, so as to furnish drainage for it. In other words, whether they were justified in building a tight dam across this valley, no matter whether the plaintiff’s property was submerged or not.” It seems to us that this charge was calculated to withdraw the attention of the jury from the true question at issue, if any there were, and to substitute in place of it a question to be determined by them, as to whether the defendant ought not, as a mere matter of fairness, and without any question of legal obligation, under all the circumstances, to have constructed culverts in their embankment, to facilitate the drainage of the plaintiff’s land.

The judgment is reversed, a new trial ordered, costs to abide the event.

Present — Tappen and Talcott, JJ.

Judgment reversed and a new trial ordered, costs to abide event.

      10 Gray, 38.

       See, also, Dickinson v. Worcester, 7 Allen, 19; Swett v. Cutts, 50 N. H., 439; Goodale v. Tuttle, 29 N. Y., 466.

      Angell on Water-Courses, § 4.

       Id., § 4, a.


text:
    BENJAMIN F. JERVIS, Respondent, v. JESSE HOYT and others, Appellants.

      Principal and agent—Factor—extraordinary power in cases of emergency—Repudiation of factor's acts by principal—to be made within reasonable time.

    A factor is bound to obey the orders of bis principal. But where no orders are given, or the orders are not clear, explicit and peremptory, the factor is only bound to good faith and reasonable discretion.
    Emergencies may arise in which an agent or a factor may, from the necessities of the case, be justified in assuming extraordinary powers, and his acts, fairly done under such circumstances, bind the principal.

      Acts done in the bona fide efforts to save perishing property come within the rule. If the principal objects to the acts of his agent, he should dissent, and give notice of such dissent in a reasonable time, or his assent will be presumed, even in case of- a violation of instructions.
    A principal cannot, by preserving silence on being informed of his factor’s transactions in his behalf, keep himself in a position to avail himself of the transaction if it prove to be profitable, and to repudiate it if it be otherwise.
    Appeal from, a judgment in favor of the plaintiff, entered on the report of a refere!. The action was brought to recover ‘$10,611.54, an alleged balance of account due to plaintiff, who was a banker,, from- the defendants, factors and dealers in grain,, residing in the city of New York.

      C. Van Santvoord, for the appellants.

      A. H. Bailey, for the respondent.
   Talcott, J.:

The referee in this case has held that the plaintiff is properly chargeable with the losses which occurred on all the lots of corn, taken up in behalf of the plaintiff from the “New York Guaranty and Indemnity Company,” except the loss on what is known in the case as the $23,000 lot, as to which he determines that the loss, which he states at $5,136.25, must be borne by the defendants. On a careful examination of the case, we think the referee erred, in charging the loss on the $23,000 lot to the defendants, for several "reasons. The defendants in this matter were the factors of the plaintiff. A factor is bound to obey the orders of his principal. But where no orders are given, or where they are not clear, explicit and peremptory, the factor is only bound to good faith and reasonable discretion. And an examination of the testimony and correspondence contained in the case, shows that the general relations between the parties were, that the plaintiff, in regard to all this property, while of course expressing the hope and expectation of being able to get out of the transaction with the Indemnity Company, at a profit, or at least without any loss, still, he confided in the judgment, good faith and discretion of the defendants,..to manage the matter as his factors, and as they might think to his advantage. It does not appear that the defendants have been wanting in reasonable discretion, and no attempt is made to impeach their good faith, nor, so far as we can discover, is the plaintiff able to put his finger upon any specific order which the defendants have violated. But more closely to examine the history of what is called the $23,000 lot, we find that the Indemnity Company held this lot for a specific advance of $23,000. It consisted of three boat loads •of corn, in all something over 22,000 bushels, by the boats J. C. Harper, Hattie Eliza and R. W. Boyd. This, with the other lots, was in the hands and custody of the Indemnity Company, under the arrangement made by the plaintiff, that he might, at his option, take out of their custody any particular lot or part of a lot, upon paying up the advances which had been made upon that lot. The whole was under the general charge of the defendants at Hew York, as the factors of the plaintiff, who resided at Cazenovia, in Madison county. On the 23d day of Hovember, 1868, the defendants discovered that the cargo of the R. W. Boyd was heated, and was receiving damage. The market was then rising. To prevent further loss and damage to the cargo of the R. W. Boyd, the defendants made an arrangement with the Indemnity Company, whereby they were permitted to take out of the custody of the • company the cargo of the Boyd, and sell the same, upon the agreement that, in a few days, they would pay the whole $23,000, advanced on that lot, and take the whole of it.' And they became thereby bound to pay the company the whole $23,000, before or at the maturity of the loan. As we understand the case, and as the acts and correspondence of the parties demonstrate, the authority to take up any or all the loans, when they should think it for the advantage of the plaintiff, was confided to the discretion and judgment of the defendants; but, without reference to this general authority, such an act as the taking up of the $23,000 loan, on a rising market, for the purpose of saving one of the cargoes from perishing, was within the general powers of the factors. Emergencies may arise, in which an agent or factor may, from the necessities of the case, be justified in assuming extraordinary powers, and his acts, fairly done under such circumstances, bind the principal. Amongst other emergencies, acts done in the bona fide effort to save perishing property is one. When the defendants hound themselves to take up the whole $23,000 lot, the market was rising; and if the corn could have been sold without unnecessary delay, not only there would have been no loss, but, as Hazeltine testifies and which is undisputed, a very considerable profit would have accrued to the plaintiff upon that lot. But we think, moreover, that the plaintiff ratified the transaction by which the defendants became bound to take up the whole $23,000 loan. On the twenty-fourth day of November, the same day on which the defendants had agreed to take it up, or the next day, they wrote to the plaintiff as follows: “We find on examining the corn left with the Indemnity Company all in good order except Bt. R. W. Boyd, 6,426^ bushels. This load is a very unsound one, has been kiln-dried when hot, and is now alive with weevil, who have eaten into the grain. Scarcely a kernel but cut. We sold this load at 107£ in store just as it is. It will have to be turned over several times to get the weevil out of it. Prime corn was steady at 112 to 14 c in store; 116 to 16£ afloat.” The plaintiff had a list of all the' lots of corn held by the Indemnity Company, with a statement of the amount loaned on each lot, from which it appeared that, on the loads of the three boats, of which the R. W. Boyd was one, there was a loan of $23,000, due December 21st, 1868; and he knew that, according to his arrangement with the Indemnity Company, the sale of the cargo of the Boyd involved the taking up, or the agreement to take up by the defendants in his behalf, of the whole loan of $23,000. On the twenty-sixth of November, the plaintiff wrote to the defendants, as follows: “ I have received your advice of sale of two loads of corn. The market runs against us so far. Mr. Munn urges that the sales he slow' at present. I will go to New York Saturday or Monday.” This was apparently in reply to two letters of the defendants, under date of the twenty-third and twenty-fourth, and apparently one of the loads referred to as sold, is the cargo of the R. W. Boyd. At all events, it does not appear that the plaintiff made any objection to, or found any fault with the transaction. On the twenty-eighth day of November, the plaintiff telegraphed to the defendant: Hold balance of corn till I get to New York.” On the thirtieth, the plaintiff wrote the defendants : “Tours of twentv-seyenth is received. Glad to notice some improvement in the market. At request of our Chicago friends, I telegraphed you on Saturday not to make further sales until I see you. I expect to be in Hew York Wednesday.” If the principal objects to the acts of his agents, he ought to dissent, and give notice of such dissent, in a reasonable time, or his assent will be presumed, even in case of a violation of instruction. The effect of the plaintiff’s silence, as to the agreement to take up the $23,000 loan, was this : being assumed by the factors to be the corn of the plaintiff, and held by them on his behalf, of course it came under the orders of the plaintiff not to sell until he arrived at Hew York, or gave further directions. Whereas, if the plaintiff had intended to repudiate the transaction, and claim that the defendants had made that lot of corn their own, as it appears from the undisputed testimony of Hazeltine, it might then have been sold at a considerable profit. A principal cannot, by preserving silence, on being informed of his factor’s transactions in his behalf, keep himself in a position to avail himself of the transaction if it proves to be profitable, and to repudiate it if otherwise. And this appears to be what the plaintiff seeks to do in this case. Being under orders not to sell, the defendants did not pay the balance of the $23,000 to the Indemnity Company till the loan matured on the 21st December, 1868. In the meantime, the plaintiff had been to Hew York, as was shown by the entry of his name in his own handwriting, on the hotel register. Mr. Hoyt, one of the defendants, says, that while plaintiff was in Hew York at that time, he expressly instructed him to take up the $23,000 loan at maturity. The plaintiff, however, claims to have no recollection of having been in Hew York till the following summer. And the referee makes no finding in regard to any personal interview between the parties, after the original employment of the defendants as factors. It is very clear, however, that the plaintiff was fully advised of the payment of the $23,000 loan, by the letter of the twenty-seventh of December, and that the defendants then had on hand for the account of the plaintiff, amongst other corn, the two remaining boat loads of the $23,000 lot. He was also informed of this in other letters, and by the accounts rendered from time to time, but never disavowed the transaction, or objected to it, till long after it had - taken place, and when, as it seems to us, a considerable loss on this $23,000 lot had accrued, apparently from the instructions of the plaintiff to withhold it from sale, when it could have been sold at a profit. We do not see how, upon the evidence afforded by the case, the defendants can be held liable for the loss on the $23,000 lot, which is all that it is necessary to consider on this appeal. We think the defendants were justified in their agreement to take it up, under the circumstances, and at the time when they did so. And if they were not strictly justified in so doing, the plaintiff ratified the transaction, by omitting to object to it within a reasonable time after notice of it, but instead, writing as though he understood and approved of it.

A new trial must be ordered, with costs to abide the event, and a new referee substituted.

Present — Barnard, P. J., Tappen and Talcott, JJ.

Ordered accordingly.

       Story on Agency, § 74-186; La Farge v. Kneeland, 7 Cowen, 456.

       Story on Agency, § 141.

       Vianna v. Barclay, 3 Cowen, 281; Cairnes v. Bleecker, 12 J. R., 300.


text:
    THOMAS CONWAY, Respondent, v. HANNAH G. WILLIAMS, Executrix, etc., Appellant.

      Presumption—sealed note—consideration—account.

    Where, in an action on a sealed note, an account, purporting to constitute a part of the consideration therefor, was produced before the referee and marked for identification, held, that the failure of the plaintiff to introduce the account in evidence, raised no presumption that the note had no consideration or an . insufficient one.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee. The action was brought to recover the amount alleged to be due on a sealed note.

      William Wickham, for the appellant.

      G. H. Gleason, for the respondent.
   Talcott, J.:

This case presents nothing but a question of fact. The action is on a sealed note, executed in the presence of a subscribing witness. The making of the note was duly proved, and evidence was given, showing the existence of a part of the consideration, and that an account-, purporting to constitute the consideration of the note, was before the maker at the time of the making of the note, and was subsequently read and explained to him, on one or two occasions, without objection. This account was also produced before the referee and marked for identification, and was before the parties on the trial. The defendant’s counsel seems to think it was the duty of the plaintiff to offer this account in evidence, and that, because he did not do so, some presumption should have been indulged by the referee, that the note had no consideration, or an insufficient one. This is a mistake. The note itself afforded presumptive evidence of a sufficient consideration, and the outside evidence- given by the plaintiff, tended also to show a consideration, as settled and agreed on by the parties at the time. The onus was on the defendant, to-impeach the note if he could do so, and if the account, then before the referee, and marked for identification, contained any evidence tending to impeach the note, it should have been offered in evidence by the defendant’s counsel. The case certainly discloses no evidence, upon which the referee would have been justified in finding that the note had none, or an insufficient consideration.

Judgment affirmed.

Present — Barnard, P. J., Talcott and Tappen, JJ.

Judgment affirmed.


text:
    CHARLES L. TIFFANY, Respondent, v. HENRY A. BOWERMAN and others, Appellants.

      Supplemental complaint—what cannot be.set vp by.

    A supplemental complaint must be consistent with, and in aid of, the case made by the original complaint. A new and substantive cause of action cannot be set up, by way of supplemental complaint, as a ground of recovery, more especially a cause of action to which the plaintiff was not entitled when he commenced the action.

      Appeal from an order made at Special Term, allowing the plaintiff to serve a supplemental complaint in this action.

      Edmund Coffin, Jr., for the appellants.

      Abel Crook and Therasson & Bryan, for the respondent.
   Talcott, J.:

This is an appeal from an order, authorizing the plaintiff to file a supplemental complaint. The alleged cause of action, upon which the suit was commenced, was in substance as follows: That the plaintiff is the owner of a country seat in the village of Irvington, on the Hudson river, comprising about forty acres of land. That adjoining the plaintiff’s country seat is a parcel of land of about three acres, formerly belonging to the estate of one Dunham. That the defendant, Thomas H. Stout, is a real estate broker at Irving-ton, and that the plaintiff, about August 1st, 1871, employed Stout to purchase the three acres. That Stout accepted the employment, - and agreed that he would do his best to effect a sale of the three acres to the plaintiff, and agreed that he would keep the plaintiff advised of his negotiations on the subject. And that the plaintiff informed Stout that he, the plaintiff, was willing to pay $10,000 for the three acres. And that the plaintiff confided in Stout to look after his interests in the matter, and did not attempt to make the purchase himself, or through some other agent, as he otherwise would have done. That instead of acting for the plaintiff, Stout negotiated and effected a sale of the three acres from the Dunham estate, to the defendants, the Bowermans, for the price of $9,000; and that the three acres has been conveyed to the Bowermans, by the parties representing the Dunham estate. That at the time of the purchase by, and conveyance to, the Bowermans, they had notice of all the previously alleged facts, and fraudulently combined and colluded with Stout to prevent the plaintiff from purchasing the three acres, and to get it into their own hands, to use or dispose of it to the prejudice of the plaintiff, or to threaten so to do; and they have advertised the said three acres for sale, in small lots, and intend so to sell the same, by which, if carried out, the plaintiff claims he will be prejudiced and injured as the owner of the country seat and forty acres. That the plaintiff has- tendered to the Bowermans the sum of $10,000, and demanded that they should convey to him the three acres, but that they refuse so to do; and that he believes Stout is interested with the Bowermans in the purchase of the three acres, and entitled to a share of the profits which may be realized on a sale thereof. And he asks that the Bowermans shall be adjudged to have purchased and taken the conveyance of the three acres for the account and benefit of the plaintiff, and should, by the order of the court, be compelled to convey the same to the plaintiff, on receipt of the amount they paid, with interest and expenses. The defendants in their answers allege the title of the Bowermans, and generally deny the allegations of the complaint. The action was referred to a referee to hear, try and determine. A long trial was had, and the plaintiff rested his case. Thereupon, an argument was had on a motion by the defendants to dismiss the complaint. The referee took the matter into consideration, and has since notified the defendants’ counsel that he had decided the case, and is ready to make a report dismissing the complaint, though he has not made any formal report.

It seems that, from something which transpired on the trial, the plaintiff gained the information, or the impression, that the defendant, Stout, had been employed by the representatives of the Dunham estate to sell the three acres for the best price he could get. That Stout did not inform the representatives of the Dunham estate, that the plaintiff was desirous of making the purchase, and would give more than the price at which they sold to the Bower-mans, but procured the Bowermans to purchase at the less sum. That the Bowermans had also notice of these facts, and acted in collusion with Stout, and against the interest of the Dunham estate in the matter. Wherefore, as the plaintiff claims, the representatives of the Dunham estate had good cause of action against the defendants, to annul and set aside the conveyance of the three acres. And the plaintiff says, on the 20th of April, 1874 (after the trial of the action originally commenced by him, and after its submission to the referee), he obtained a conveyance from the representatives of the Dunham estate, of the three acres in question, with all their rights and equities, and with the right to be subrogated thereto; and he thereupon made a motion for leave to file a supplemental complaint, setting up the assignment to him of the cause of action, alleged to have existed in behalf of the representatives of the Dunham estate against the defendants, growing out of the facts thus alleged, and seeking to recover in this action, as the assignee of the representatives of the Dunham estate. It seems only necessary to state the facts, in order to show that the motion for leave to file this supplemental complaint for such a purpose, should have been at once denied. A supplemental complaint must be consistent with, and in aid of, the case made by the original complaint. A new and substantive cause of action cannot be set up, by way of supplemental complaint, as a ground of recovery, more especially a cause of action to which the plaintiff was not entitled when he commenced the action. The plaintiff, in order to be entitled to a judgment, must have the right to recover at the time when he commences his suit. To permit a plaintiff, after the defendant has been exposed to the annoyance and expense of defending himself against an unfounded claim, to bring in an entirely new claim, not existing in bis behalf when the action was commenced, and, by way of supplemental complaint, to set it up as a ground of recovery in the original action, would be extremely unjust and absurd.

The order appealed from is reversed, with ten dollars costs.

Present — Barnard, P. J., Tapper and Talcott, JJ.

Order reversed, with ten dollars costs.


text:
    JOHN S. TAYLOR and another, Respondents, v. THOMAS HEPPER, Appellant.

      Streets—what constitnites a dedication of land for, as between gra/ntor and grantee.

    The defendant, the owner of certain land in the village of Walden, caused the same to he mapped and laid out into village lots, with streets and avenues therein, and subsequently conveyed to the plaintiffs and one Q-. L. B. certain of the said lots, which fronted on a street designated on the said map as John street. The deeds provided that where any of the lots joined a street, the line was to extend to its center. Held, that the conveyance was, par se, a dedication of the street to the use of the grantees as a street, and that they could maintain an action to compel the grantor to remove obstructions therefrom. Fonda v. Borst (2 Keyes, 48) distinguished.
    The defendant, at the same time, conveyed to the plaintiff, J. S. Taylor, a lot, upon a portion of which was situated a barn, which extended across and closed John street. The deed reserved to the parties of the first part “for their own use, twelve feet six inches along the south side of said lot, as long as the barn stands there, and, if the barn is removed, the line is to be the center of the said street.” Reid, that even if the reservation should be construed as an implied covenant that the barn might stand there for an indefinite period, it could only apply to and abridge the rights which the grantee acquired under the conveyance of that particular lot, and could not operate as a limitation upon the rights acquired under previous deeds of the other lots.
    Proof of a parol promise by the grantor to remove the barn in a reasonable time, did not operate to add anything to the effect of the deed, or in any manner change its operation. Such promise and its non-performance were admissible, to show the propriety and necessity of the action, and might affect the question of costs.
    Appeal from a judgment in favor of the plaintiffs, entered upon the trial of this action before the court, without a jury. This action was brought to compel the defendant to remove a barn from a street designated on a map of lands belonging to him, and along which the plaintiffs own lands, purchased from him. The justice before whom the action was tried, found, as matters of fact:
    That about the early part of the year, 1868, the defendant, being the owner of certain real estate situated in the village of Walden, Orange county, New York, with the view of making the same more valuable, and as a railroad was about being run through said real estate, employed one Levi D. Bruyn, a surveyor or engineer, and had said lands mapped and laid out into village lots, with streets and avenues laid out therein; that upon said map and upon said lands there was, among others, a street laid out fifty feet in width, running from Orange avenue to Hepper avenue, and so to the depot or proposed depot of said railroad, being the Wallldll Valley Railway Company, and subsequently called John street; that in the west end of John street aforesaid there stood a large barn, belonging to said defendant, occupying the whole of said end of John street, and being about sixty feet one way, and with a hay barn attached, about twenty-eight feet the other; that said barn was indicated on said map in the end of said street; that said street was a very important one, as it led directly from the populated part of said village to the depot aforesaid.
    That on the 12th day of October, 1868, the plaintiffs and one Gilbert L. Barlow, in the name of John S. Taylor and said Gilbert L. Barlow, made and entered into a contract in writing with said defendant, whereby, for the consideration of $4,800, said defendant agreed to sell and convey to them, on or before April 1st, 1869, twenty-two of the lots of land laid down on said map, to wit: Nos. 1, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 29, 38, 39, 48, 49, 56, 57, 58 and 59, that said plaintiffs and said Barlow duly performed and fulfilled said contract on their part, and that in pursuance thereof said defendant and Fanny J., his wife, in April, 1869, executed, acknowledged and delivered to said plaintiffs and said Barlow deeds of conveyance for said lots mentioned and described in said contract; that, by an arrangement between said plaintiffs and said Barlow, a deed for a part of lot No. 29 was taken in the name of said plaintiff John S. Taylor alone, and contains this reservation: “ The parties of the first part reserving for their own use twelve feet six inches (12.6) along the south side of said lot, as long as the barn stands there, and if the barn is removed, the line is to be the center of said street; ” and that said deed to said plaintiffs and said Barlow contains this provision : “And it is also agreed by the parties of the first part that where any of the above described lots joins the street, the line is to extend to the center of said street.”
    That said lots, so purchased by said plaintiffs and said Barlow from said defendant, were purchased by said map and as laid down thereon by said Bruyn, and that said map was examined to that end on said day said contract was entered into and when said deeds were delivered; that said lots of ground were indicated by pegs driven therein, corresponding to the same as laid down on said map, and that the said lots as purchased and deeded as aforesaid, were located on both sides of said street called John street; that three adjoined said street, two on one side thereof and one on the other, and in said conveyances said lots were described by their numbers and by reference to said map.
    That said defendant, as an inducement for the sale of said lots of land to said plaintiffs and said Barlow, at the time of said sale, promised and agreed to and with them to remove said barn from said street, called John street, in a short time, or in a reasonable time, and that said deeds were received by them upon that understanding and agreement; that thereupon said plaintiffs and said Barlow erected expensive buildings upon said lots of land so conveyed to them, and commenced and continued to carry on the lumber business thereon; that said defendant never removed said barn from said street, although requested so to do by said plaintiffs and said Barlow, and that the same remains in said street, as it stood when said defendant sold said lots, and that said defendant has had a reasonable time to remove said barn and perform his said agreement; that said defendant removed stone walls from off said lots so sold, and from off some of said streets so laid out, soon after the execution of said contract, but the only enjoyment of said street, called John street, that said plaintiffs and said Barlow ever had, was that end opening toward the railroad depot, which is open; and to go to the populated part of said village of Walden, they must needs pass down into Hepper avenue, and so around to the left to the south plank-road, or to the right up Grant street to Orange avenue, in either case a roundabout way and much to their inconvenience.
    That about March, 1871, said Barlow sold and conveyed his interest in said lots to said plaintiffs, who had continued the same business upon said premises, and who are copartners therein ; that said John S. Taylor has requested said defendant to remove said barn from said street, but said defendant refuses so to do, and the same still remains therein as aforesaid, by reason whereof said plaintiffs have sustained damages and been injured in the enjoyment of their said lots of land.
    And as conclusions of law upon the foregoing facts:
    That said plaintiffs are entitled to the relief demanded in their complaint in said action ; that, as between them and said defendant, they have a right to use said street called John street, from Hepper avenue to Orange avenue, the whole length of said street; that said defendant, having had a reasonable time to remove said barn, and having failed so to do, should be compelled to remove the same from said street, and open said street to its full width, fifty feet, and keep the same open.

      Cassedy & Brown, for the appellant.
    That parol evidence of the promise to remove the barn was improper. (Case v. Haight, 3 Wend., 632; Provost v. Calder, 2 id., 517; Badeau v. Mead, 14 Barb., 325.) That John street had never been dedicated to the public use. (Holdane v. Trustees of Cold Spring, 21 N. Y., 474.)

      B. R. Champion, for the respondent.
    That evidence of the promise to remove the barn did not vary the written contract. (Thomas v. Truscott, 53 Barb., 200; Phelps v. Bostwick, 22 id., 314; Tallmadge v. The East River Bank, 26 N. Y., 105.) That the plaintiffs had a right to have the barn removed. (Bissell v. N. Y. C. R. R. Co., 23 N. Y., 61; Perrin v. N. Y. C. R. R. Co., 36 id., 120; Wiggins v. McCleary, 49 id., 346; Rogers v. Salmon, 8 Paige, 559 ; Phillips v. Higgins, 7 Lans., 314; Cox v. James, 59 Barb., 144.)
   Talcott, J.:

We think this action was correctly decided on the merits by the justice before whom it was tried. We understand the law to be well settled, as stated in the opinion of Mr. Justice Weight, in Fonda v. Borst, and as follows: “ Where the proprietor of lands surveys, maps and lays out such lands into lots (numbering them), with streets designated, named and put down on the map, as between him and a grantee of a lot bounded on one of the designated streets, his conveyance is per se a dedication of the street to the use of his grantee, as a street. As between the grantor and grantee it is a street, which the latter has a right to use as such as soon as the conveyance is made to him. By force óf the grant, an easement is attached to the land granted, which thereby becomes an appurtenant, viz.: a right of way on and over the strip designated as a street, for the use of the lot conveyed.” The rule thus clearly and tersely stated, fully covers and applies to this case. It is true, the majority of the court did not coincide with Mr. Justice Weight as to the application of the principle, stated by him, to the case then under consideration; but that case was decided upon its peculiar facts, which, the majority of the court apparently held, took it out of the well settled general rule; and the fact that the ease does not appear among the authorized reports of the Court of Appeals, affords evidence that the case was understood by the court to have been decided on its peculiar circumstances, and not to afford a general rule of law, as authority in other cases, not precisely resembling that case in all its facts. The fact that, in the conveyance of lot twenty-nine to John S. Taylor, one of the grantees of the others, reference was made to the barn obstructing John street, and reserving the use of a part of lot twenty-nine as long as the barn stands there, even if it is to be construed as an implied consent that the barn may stand there for an indefinite period, can only apply to and abridge the rights which the grantee got under the conveyance of lot twenty-nine. It does not purport to be, and cannot operate as, any reservation of or limitation upon the rights acquired under previous deeds of the other lots. The proof of the parol promise, by the grantor, to remove the barn in a reasonable time, did not operate to add anything to the effect of the deed, or in any manner change its operation; The fact of such a promise, and its non-performance, only went to show the propriety and necessity of commencing this action in equity, and might have affected the question of costs, which were in the discretion of the court.

The judgment is affirmed, with costs of the appeal.

Present — Tappen and Talcott, JJ.

Judgment affirmed, with costs.

       2 Keyes, 48.

       Fonda v. Borst, 2 Keyes, 48.


author: Barnard, P. J.:

text:
    WILLIAM H. RAYNOR, Appellant, v. MARY E. PAGE, Impleaded, etc., Respondent.

      Fraudulent conveyance—action to set aside — what evidence admissible in.

    One Page, after the commencement of a suit against him by the plaintiff, and shortly before the recovery of a judgment therein, conveyed certain real estate to his wife, one of the defendants herein, The wife claimed that she paid her husband $6,000, which amount she borrowed from one Bells, to whom she subsequently conveyed a portion of the property. In an action by the plaintiff to set aside the conveyance, Bells, who was called as a witness, was asked by the plaintiff whether he held the deed by way of mortgage or security to any indebtedness, or as his own absolute property. This question was, upon the objection of the defendant, excluded. Held, that this was error.
    Appeal from a judgment in favor of the defendant, entered upon the report of a referee.
    This action is brought by a judgment creditor of J. Augustus Page, to set aside conveyances of certain lands, in Brooklyn, made by him to one Allen and by Allen to Mary E. Page, wife of J. A. Page, as fraudulent as against the plaintiff.
    It was claimed on the part of the defendant, that in March, 1873, Page made a parol contract with his wife to convey to her the property in question, if she would make to one Eells, her bond, secured by mortgage on her separate property,- for $6,000, to whom Page was then indebted to the amount of $4,000. The mortgage was given by the wife, and, in pursuance of the agreement, Page had the property conveyed to her. Subsequently, Eells satisfied his mortgage in consideration of the conveyance to him by Mrs. Page of a portion of the property.
    Other facts appear in the opinion.

      Edmund Coffin, Jr., for the appellant.

      Shaw & Jeroloman, for the respondent.
   Barnard, P. J.:

I think the referee erred in excluding proof as to the manner in which Eells held the deed for the four houses, part of the property in question given him by Mrs. Page. The plaintiff was a judgment creditor of Page. Just before plaintiff recovered a judgment, Page transferred to his wife a large real estate. The consideration claimed to have been paid was $6,000. Eells claimed to have loaned this sum to Mrs. Page, for which he took a mortgage on a house and lot of Mrs. Page, and subsequently took a deed of part of the disputed property, in satisfaction of that mortgage.

The witness was asked how he held that deed, as a mortgage or as his own absolute property, and was not permitted to answer. The entire transaction between Page, Eells and Page’s wife, should have been admitted. The validity of the sale to Mrs. Page depended upon being made in good faith and for an adequate consideration. The evidence offered bore upon both these questions.

The referee also erred in excluding the evidence offered, as to the state of the account between Mrs. Page and her husband, at the time of the transfer.

Assuming the referee’s conclusion, that the wife paid $6,000 and that that was a fair consideration, his rulings follow as a matter of course. But the evidence offered bore upon the question whether Mrs. Page did pay, in point of fact, anything, and should have heen received before the finding was made upon that point.

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

Present — Barnard, P. J., Tappen and Talcott, JJ.

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


text:
    MARY C. PORTER, Plaintiff, v. WILLIAM M. PARKS and BENJAMIN G. SMITH, Defendants.

      Agent—letters from, to principal—not admissible against third, person—Q-enei'al objection—when sufficient.

    ¡Letters from an agent to his principal cannot be given in evidence against a third person.
    When evidence is necessarily and obviously improper, a general objection is all that is required.
    Motion for a new trial, on exceptions ordered to be heard in the first instance at the General Term.
    This action was brought to recover the value of certain shares of stock belonging to the plaintiff, which had been deposited with the defendants by the plaintiff’s brother, William 0. Porter, as security for advances made to him. The case has already been before the Court of Appeals, and is reported in 49 New York, at page 564.
    The facts upon which the decision of the General Term was based, appear in the opinion.

      Van Winkle, Candler & Jay, for the plaintiff.

      F. F. Marbury, for the defendants.
   Barnard, P. J.:

It was a vital question to the plaintiff’s recovery in this action, whether the defendants, at the time of the hypothecation of the stock in dispute, had notice of the plaintiff’s ownership. There was a direct conflict between the evidence of William 0. Porter and William M. Parks, on this subject.

The defendants called as a witness, Henry Stanton, the agent of William C. Porter. He testified that he did not hear any communication of the fact, that Miss Porter owned the stock, made to Parks, upon the occasion when William C. Porter says he made it. Upon the former trial, Stanton had been sworn for defendants, and upon his cross-examination, plaintiff had been permitted, without objection, to read extracts from his letter to William 0. Porter, in which Stanton spoke of the scrip, as belonging to plaintiff, as safe, and that he would see it would not be jeopardized; that he did not recollect whether he told Parks the same thing. Upon this trial, the plaintiff offered to read the former cross-examination of Stanton, and defendants’ counsel objected to the reading of the letter. This objection was overruled and an exception taken.

I think this ruling was erroneous. The letter did not bind the defendants. They were, as to them, acts between strangers. Letters from an agent to his principal cannot be given in evidence against a third person.

The objection was sufficiently specific. When the evidence is necessarily and obviously improper, a general objection is all that is required.

We think for this error, the judgment should be reversed and a new trial granted, costs to abide event.

Present — Barnard, P. J., Tappen and Talcott, JJ.

New trial granted, costs to abide event.

       1 Cowen and Hill, 565.


text:
    GEORGE ALEXANDER, Plaintiff, v. THE GERMANIA FIRE INSURANCE COMPANY, Defendant.

      Policy of inmrance—warranty — hnowledge of agent — when principal bound by.

    Defendant’s agent applied to the plaintiff to insure a dwelling-house belonging to him, which was, as the agent knew, then unoccupied. The application, which was made out by the agent, who wrote the answers to all the questions proposed, was signed by the plaintiff and sent to the company.

      The application contained the following question : “ Occupation. For what is the building used, and how many tenants are there ?” To this the answer, written by the agent, was— “ Dwelling.” In an action upon the policy issued thereon, the defendant claimed that the policy was void because the answer as to the occupation was a warranty and was untrue. Held, that, as the agent acted as the agent of the company in soliciting and filling up the application, the effect of the question and answer was simply a covenant on the part of the assured that the building was a dwelling-house, and, when used thereafter, should be used as such.
    The policy provided that any person, other than the assured, who might have procured the insurance to be taken, should be deemed the agent of the assured, and not of the company. Held, that this provision related to that class of persons known as insurance brokers, whose business it is to effect insurance for other persons, and who are not agents either of the company or of individuals, except so far as their acts in each particular case make them so.

      Semble, that the company would he estopped by the knowledge of its agent, when his acts and declarations have induced the contract of insurance.
    Motion for a new trial on exceptions ordered to be heard in the first instance at the General Term. This action was brought upon a policy of insurance issued by the defendant, to. recover the value of a house destroyed by fire. The application, which was prepared by an agent of the company and signed by the plaintiff, contained, among others, the following question, viz.: “ Occupation. For what purpose is the building used, and how many tenants are there % ” To which the answer was, “ Dwelling.” The policy contained the following condition: “ 11. It is a part of this contract, that any person other than the assured, who may have procured this insurance to be taken by this company, shall be deemed to be the agent of the assured named in this policy, and not of this company under any circumstances whatever, or in any transaction relating to this insurance.” Upon the trial the court directed a verdict for the plaintiff for the amount of the loss, subject to the opinion of the court at the General Term. The facts appear in the opinion.

      J. Lawrence Smith and William E. Stiger, for the plaintiff.
    Brewster was the agent of the company. (Flanders on Fire Ins., 166 ; Rowley v. Empire Ins. Co., 36 N. Y., 550 ; Pitney v. Glens Falls Ins. Co., 61 Barb., 335.) If the language is doubtful, it is to be construed against the company. (Reynolds v. Commerce Ins. Co., 47 N. Y., 597; Bowman v. Agricultural Ins. Co., 2 N. Y. Sup. Ct. R., 264.) The company is chargeable with the knowledge of its agent. (Ames v. N. Y. Union Ins. Co., 14 N. Y., 253; Plumb v. Cattaraugus Ins. Co., 18 id., 392; Combs v. Hannibal Savings Ins. Co., 43 Mo., 248; Peoples Ins. Co. v. Spencer, 3 P. F. Smith, 353 ; Meadowcraft v. Standard Fire Ins. Co., 11 id., 91.)

      B. C. Chetwood, for the defendant.
    The statements as to occupation are warranties. (Brown v. Cattaraugus Ins. Co., 18 N. Y., 392; Chase v. Hamilton Ins. Co., 20 id., 52; Jennings v. Chenango Co. Mutual Ins. Co., 2 Denio, 75 ; Sarsfield v. Metropolitan Ins. Co., 42 How. P. R., 97; Smith v. Empire Ins. Co., 25 Barb., 497; Leroy v. Market Fire Ins. Co., 39 N. Y., 90 ; Leroy v. Market Fire Ins. Co., 45 id., 80; Parmelee v. Hoffman Fire Ins. Co., 54 id., 193; Colt v. Phœnix Five Ins. Co., id., 595.) The occupation was a warranty by the insurer, and non-occupation a breach of it and avoided the policy. (Jennings v. Chenango Mutual Ins. Co., ante; Mead v. Northwestern Ins. Co., 3 Selden, 530; Wustum v. City Fire Ins. Co., 15 Wisc., 138 ; Harrison v. City Fire Ins. Co., 9 Allen [Mass.], 231; Witherell v. Maine Ins. Co., 49 Me., 200; Ripley v. Ætna Ins. Co., 30 N. Y., 136.) Warranties extend even to Jenown defects. (Jennings v. Chenango Mutual Fire Ins. Co., ante; Kennedy v. St. Lcmrence Co. Mutual Ins. Co., 10 Barb., 285.)
   Barnard, P. J.:

The defendant, on the 17th May, 1872, issued a policy of insurance to plaintiff, on a house in Suffolk county, for one year. The house shortly thereafter burned down. It had been occupied as a dwelling by a Mrs. Mowbray, until about a month before the insurance was effected; but at the time of the insurance was unoccupied, and remained so until the fire. The application was taken by Henry Brewster, who for three years had solicited business, filled out applications, received premiums, taken surveys, and made descriptions of buildings for defendant. Mr. Brewster, knowing the house was unoccupied, applied to plaintiff to insure it. After some hesitation plaintiff consented. Brewster made out the application ; wrote all the answers which were written to the questions proposed. Plaintiff signed it, and it was sent to the defendant, and upon it the policy in question was issued. In this application, there is contained the following question : ■ “ Occupation — For what is the building used, and how many tenants are there ? ” To this the answer written by Brewster was —“ Dwelling.” It is now claimed that the policy thus issued is void, for the reason that plaintiff, by the application, made a warranty as to the occupation, which was broken when made, and thereby the policy was ■of no effect.

This presents two questions for examination: What was the warranty in question?.. What effect had the knowledge of Brewster, that the house was unoccupied, upon the defendant ?

The question of warranty would not be free from doubt, if the application had been filled out by plaintiff. The insured premises had been a dwelling until a few weeks before the fire ; was a dwelling-house, in ordinary and accurate language at the time of issuing of policy, having no tenant, and was expected to be tenanted as a dwelling in the near future. A general question, as to mode of occupation, might be answered, as it was answered, dwelling.” All doubt is removed as to the question, when the additional fact is considered, that Brewster solicited and filled up the application himself. He was defendant’s agent, acting within the scope of his authority. He was told nothing by plaintiff, but wrote the company answers to the questions, with a full personal knowledge of the facts. Brewster cannot be held to have intended to deceive either his own principal or the plaintiff. In view of these facts, and of the fact that that part of the question as to number of ■tenants is unanswered, the legal intendment must be, that the company has only á covenant that the building was a dwelling-house, and, when used thereafter, should be used as a dwelling.

• Assuming the legal construction of the question and answer to be, that the house was, at the date of the application, actually occupied as a dwelling, Brewster knew the fact to be otherwise, and ■ prepared the application for plaintiff to sign. As has been already stated, ordinary men would make the answer in question in reference to an unoccupied dwelling-house.

The defendant ought to be estopped by the knowledge of its agent, when the acts and declaration of the agent induced the contract of insurance. This seems to be the doctrine of the Court of Appeals on this subject. The condition No. 11, annexed to this policy, has no reference to a case like this. That condition is directed to that class of persons, known as insurance brokers, whose business is to effect insurance for other persons, and who are not agents either of companies or individuals, except so far as their acts in each particular case make them so. The defendant says, in the condition annexed to its policies, that such persons shall be deemed the agents of the applicant. It cannot be intended that an application to the defendant’s agent, makes such agent the agent of the applicant. If it was so intended, the words used do not carry out the intent.

Upon the whole case, we think the plaintiff should have a judgment upon the verdict, with costs.

Present — Barnard, P. J., and Talcott, J.

Ordered accordingly.

       Ames v. N. Y. Union Ins. Co., 14 N. Y., 253 ; Rowley v. Empire Ins. Co.,36 id., 550.


text:
    NICHOLAS DOLL, Respondent, v. SAMUEL R. HARLOW, Appellant.

      Bankrupt act—seizure of property by marshal—right of owner to recover the, value of.

    Where property, alleged to belong to a bankrupt, is seized by the marshal, and, before an order is made by the bankruptcy court directing its sale, an action of trover is commenced by the owner thereof, he is entitled to recover its full value, and is not limited to the amount realized upon a sale subsequently • ordered.
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.
    This action was brought to recover the value of certain property, unlawfully taken from- the possession of the plaintiff by the defendant.
    The property was taken by the defendant, a United States mar- ■ shal, under a warrant issued from the bankruptcy court, directing Mm to take possession of all the estate, real and personal, of one George Merkle, against whom a petition in bankruptcy had been filed January 24, 1871. This action was commenced February 27, 1871. On the 12th of April, 1871, an order was made, upon the petition of the assignee in bankruptcy of the said Merkle, requiring the plaintiff and others to show cause, on the fifteenth of that month, why the property should not be sold. On that day, no one appearing to oppose, an order was made directing the assignee to sell the property. There was realized upon the sale the sum of $669.25. The defendant claimed that the plaintiff’s recovery was limited, by section 25 of the bankrupt act, to the amount so realized. Section 25 of the bankrupt act is as follows:
    “ Whenever it appears to the satisfaction of the court that the title to any portion of an estate, real or personal, which has come into possession of the assignee, or which is claimed by him, is in dispute, the court may, upon the petition of the assignee, and after such notice to the claimant, his agent, or attorney, as the court shall deem reasonable, order it to be sold, under the direction of the assignee, who shall hold the funds received in place of the estate disposed of.
    “And the proceeds of the sale shall be considered the measure of the value of the property in any suit or controversy between the parties in any courts.
    “ But this provision shall not prevent the recovery of the property from the possession of the assignee by any proper action commenced at any time before the court orders the sale.”
    The court held that the plaintiff was entitled to recover the full value of the property, and judgment was entered accordingly.
    Tracy, Catlin & Brodhead, for the appellant.

      Edward Van Ness, for the respondent.
   Barnard, P. J.:

The only point to be considered upon this appeal, which has not already been disposed of by this court upon the previous appeal in the same case, is, whether the damages given at the circuit are too high. It seems that after the marshal took the property from plaintiff’s possession, the bankrupt court ordered its sale. It is claimed under section 25 of the bankrupt act, that the proceeds of the sale should be considered the measure of the value of the property, in any suit or controversy between the parties in any court. By the terms of this section, a recovery of the property is permitted at any time before the court orders the sale. The court did right, therefore, in giving the actual value of the property. Judgment affirmed, with costs.

Present — Barnard, P. J., Tapper and Talcott, JJ.

Judgment affirmed, with costs.