text:
    Catharine N. Forrest, Plaintiff, v. Edwin Forrest, Defendant.
    1. Until after an order has been made by a Court by whom a judgment of absolute divorce has been rendered in favor of a wife against a husband, requiring the latter to give a bond with surety, for-the payment of an allowance awarded to such wife, in such judgment, and the failure of such husband and his surety to fulfill the condition, such Court is not authorized by the provisions of the Revised Statutes, (2 R. S., 148, § 60,) to sequester the estate of such husband, appoint a Receiver thereof, and apply it to the payment of such allowance.
    2. Where security has been given by the husband in such case, by order of the Court for the payment of such allowance, it must first be resorted to and exhausted before his estate will be sequestered.
    3. If such security consist of a mortgage, previously belonging to such husband, and assigned by him to a trustee to secure the payment of such allowance, and the latter has become in arrear by reason of the collection by the husband of the interest on such mortgage, in consequence of a failure to notify the mortgagor of the assignment, and the proceeds of such' mortgage on a sale, would probably after payment thereout, of such arrears, be sufficient if invested at six per cent interest, to yield enough to pay such allowance; the Court, on the wife’s application, will order such trustee to sell the mortgage, pay the arrears from the proceeds of such sale, and invest the residue as security for the payment of such allowance, and apply the interest as received to such payment.
    Special Term,
    October, 1863.
    Before Robertson, J.

    lit" this action, which was by a wife, for a divorce, the plaintiff obtained a judgment granting the relief sought, and the judgment contained provisions that there should be allowed to the plaintiff for her support, the sum of $4,000 a year, during the continuance in life of both of the parties, payable in quarterly installments in each year.
    The judgment also directed the defendant to assign to a trust company, a mortgage in the sum of $75,000, which belonged to him, to be held by the trust company as security for the payment of the allowance. The judgment of the Court is reported in 8 Bosw., 640, and its affirmance upon appeal in 25 2ST. T. R., 501.
    The plaintiff now moved to compel payment by the defendant, of the allowance which he had failed to make.

      Nelson Chase and Charles O'Conor, for plaintiff.

      James T. Brady and John Van Buren, for defendant.
   Robertson, J.

The present application is made under the judgment at Special Term, in this action, as affirmed by the Court of Appeals, directing the payment of a certain sum quarterly, by way of allowance to the plaintiff by the defendant. That judgment directed a certain mortgage to be transferred to a trust company as security for the payment of such allowance, and reserved to the plaintiff the right of applying for farther security. Part of such allowance is unpaid. The mortgage is not yet due, and the defendant has collected the interest thereon to the present time; so that it has furnished no means of paying the plaintiff the arrears of the allowance adjudged to her. It does not appear that any notice of the assignment of the mortgage, has ever been given to the mortgagor.

Besides the judgment in this case, the Revised Statutes provide, that a court may require a husband to give reasonable security for an allowance adjudged by it to his wife, and upon his neglect to do so, or the default of him and his surety to provide such allowance, sequester his personal estate and the rents and profits of his real estate, appoint a Receiver thereof, and apply such personal estate, and rents and profits, towards such allowance, from time to time as seems to it just and reasonable. (2 R. S., 148, § 60.) This contemplates furnishing personal security by sureties in the first place, but in case of any neglect by the husband and his sureties, the immediate appropriation of his estate to the payment of the allowance. The giving of such surety was intended for the ease of the husband until he failed to perform the order of the Court.

Some laches was committed in not giving notice to the mortgagors of the assignment of the mortgage, so as to stop the receipt of the interest by the mortgagee, the defendant. It is fair, therefore, to assume, prima facie, that the plaintiff was willing that he should receive it. Such mortgage having been considered prima facie good security for the payment of the allowance, and no circumstance having occurred to lessen its value as such, it should first be used and the remedy on it exhausted, before requiring a new security to be given. The mortgage is for $75,000, and yields $4,500 interest. If the necessary sum could be raised by its pledge, so as to pay the arrears without interfering with the current allowance, it should be done by the Receivers, the Trust Company. If not, the mortgage should be sold by them, the arrears paid from the proceeds, and the residue invested to meet the allowance. The interest of $70,000, after paying such arrears, if obtained at six per cent, would exceed the amount of the allowance. If not sufficient, the plaintiff is to be at liberty to make a new application for further security.

I do not consider the Court authorized to sequester the defendant’s estate under the statute, until an order has been made directing a bond or undertaking with sureties, as security for the allowance, and there has been a failure to comply with the terms of such bond or undertaking, on the part of the plaintiff and his surety. The mortgage given has taken the place of such security to some extent, and, as it is available, should be first employed, it being a quasi sequestration of that part of the defendant’s property.

The order must be drawn directing a sale of the mortgage in question, the payment of the arrears due, and the costs of the application, fixed at ten dollars, out of the proceeds, and the investment of the residue by the Trust Company, reserving liberty to the plaintiff to make any new application for further security she may be advised;


source: Caselaw Access Project

author: Robertson, J.

license: Public Domain

text:
    Peter Murray, Plaintiff, v. Bartlett Smith, Administrator, &c., Defendant.
    L The due publication, by an executor or administrator, of a notice requiring persons having claims against the estate represented by him to exhibit the same, with the vouchers thereof within six months after its first publication, at a place which was neither bis residence nor the place of the transaction of his business, but merely the office of his counsel, is insufficient to create the statutory bar against claims against the executors and administrators of an estate, by the like publication of a notice requiring claims against such estate to be presented, similarly sustained, “ at the place of residence, or transaction of business,” of such representative. (2 R. S., 88, § 34.)
    2. Whether a publication in one paper alone is sufficient, and whether the order must not express that the Surrogate was of opinion that the paper, which he designated, was the most likely to convey information to creditors? Query.
    3. The provision of the Code of Procedure, (§ 317,) preventing costs from being recovered against executors, &c,, where they are exempt by the provisions of the Revised Statutes, is intended only to exempt them personally, and not to exempt the estate.
    Special Term,
    December, 1863.
    Before Robertson, J.
    This was an aetion, commenced in ¡November, 1843, to recover from the defendant a sum of money which the plaintiff alleged he had paid to the use of Hugh Smith, deceased. After Hugh Smith’s death, the claim was presented to Peter Smith, his executor, and rejected. The defendant, Bartlett Smith, as administrator, now represented the estate.
    The cause was tried five times successively; on each of the first four trials the plaintiff recovered a verdict, but the defendant succeeded in having it set aside. In 1851, after the fourth trial, costs were adjudged to, the plaintiff, at Special Term, by Mr. Justice Paire, on the ground that “the executor refused to refer the claim pursuant to the statute, and that the payment of the same was unreasonably resisted.” This order was affirmed on appeal, April 30,1853, by a General Term, before Duer, Campbell and Bosworth, J. J.
    Upon the decision of the cause in his favor, on the fifth trial, the plaintiff now moved for costs.

      Charles O’ Conor, for plaintiff.
    I. Payment of the claim “Was unreasonably resisted.” This, or even merely having “neglected” payment, after due demand, is a ground for allowing costs. (3 R. S., [5th ed„] 176, $ 46.)
    II. Independently of the first point, the peremptory refusal to refer is, of itself, a sufficient groundfor allowing the plaintiff’s costs. (See same section; Robertson v. Sheill, 3 Den., 161.)
    III. The defendant is not ‘entitled to make the point that he gáve 'public 'notice tó creditors,'and that this claim was not drily presented. (Halsey v. Reed, 9 Paige, 451; Bradley v. Burwell, 3 Den., 261; Gansevoort v. Nelson, 6 Hill, 389, 392; Russell v. Lane, 1 Barb., 519; King v. Holmes, 11 Penn. St., 456.)
    IV. The'attehipt to deprive the 'plaintiff' of éósts by the notice in the Brooklyn Evening Star must fail. (Halsey v. Reed, 9 Paige, 451; Jenkins v. Wild, 14 Wend., 545; Argall v. Smith, 3 Den., 435; Dayton’s Surrogate, 125; and see form No. 53, Id., [1st ed., p. 69, app’x ;] Minor v. London & N. W. Railway Co., 1 Com. Bench, N. S., [1 J. Scott, N. S.,] 331; Shiels v. Great Northern Railway Co., 2 Law Jour., N. S., Q. B., 332; Corbett v. General Steam Navigation Co., 4 Hurl. & N., 482; Belknap v. Hasbrouck, 13 Abb. Pr., 418, note; McEwan v. Burgess, 15 Id., 473.)

      H. W. Robinson, for defendant.
   Robertson, J.

In February, 1837, Hugh Smith, the testator represented by the defendant, died, leaving a last will and testament, by which he made his wife and Peter Smith and two other persons executors thereof. At the time of his death he was a resident of Kings County. Letters testamentary were, in the same year, issued by the Surrogate of that county, to Peter Smith, named as executor in such will. In 1841, (about four years afterwards,) late in June, upon the ex parte application of the executor, Peter Smith, the Surrogate of Kings County, made an order, that a notice requesting all persons having claims against the estate of the deceased testator to “present ” the same, with the vouchers thereof, to such executor, “at the office of C. E. Grim, Esq., Attorney and Counselor at Raw, No. 9, Nassau Street, New York," before a certain day, (Jan. 20,1841,) more than six months thereafter, be published in (The Brooklyn Evening Star,) a newspaper printed in such county, once in each week, for six successive months, which notice, in such form, was so published. Eothing was said in such order respecting the Surrogate’s “ deem- “ ing' such insertion in such newspaper most likely to give “ notice to the creditors of the deceased.” The claim in this action, made out in writing, properly verified by affidavit, together with a written notice offering to refer the same, if disputed, to three persons to be appointed by the Surrogate of Kings County, pursuant to the statute, by an agreement in writing, and to attend at the Surrogate’s office, on two . days’ notice, for the purpose, and stating that if no such appointment was made, it would be deemed a refusal, was served on Peter Smith, the executor, in Eovember, 1843, .who stated that he .rejected such claim, and might be considered as having refused to refer it, unless he gave notice to the contrary in six days, which he never did. Nothing was said at that time of the publication of any notice, nor was any evidence given to show any knowledge by the plaintiff at any time before the commencement of this suit, of the publication of the notice in question.

It is claimed that the non-presentation of such claim until after the expiration of the time fixed by the publication of the notice before mentioned, was a bar to any claim for costs against the defendant to be levied of his property or that of the deceased. This is set up under the provision of the Bevised Statutes of 1830, by which costs are prohibited from being “recovered against any “ executors or administrators, to be levied of their pro- “ perty, or of the property of the deceased, unless it appear “ that the demand on which the action was founded was “ presented within the time” fixed by the statute, “ and its “payment was unreasonably resisted or neglected, or the “ defendant refused to refer the same according to the pre- “ ceding provisions” of such statute. (2 R. S., 90, § 41.)

The Supreme Court of this State has held that the designation by the Surrogate, of a newspaper in which to publish such a notice, if in the same county, rendered a publication in any other newspaper unnecessary. (Dolbeer v. Casey, 19 Barb., 149.) This leaves room, however, for considerable doubt whether a mere order for publication is sufficient without a formal adjudication, even ex parte, that a publication in such newspaper alone is deemed most likely to give notice to creditors, as required by the statute. (2 R. S., 88, § 34.) To sanction merely a publication in a newspaper is one thing, and to determine that such publication is most likely to give notice to creditors, is another. The latter requires the exercise of some discretion, and some materials, such as an affidavit of the residences of the creditors, on which such discretion might operate. The former Supreme Oourt of this State, decided at Special Term, that the statute, as to costs against executors, was peremptory, , and admitted of no excuse to take a case out of its operation, if proved to be in the category required. (Bradley v. Burwell, 3 Denio, 262.) Taking these two decisions as controlling, it will be necessary to examine how far the notice in question complied with the statute.

The publication of such notice is required to be begun at least six months after granting of letters testamentary, or of administration. The notice is only required to be published in one newspaper of the county where the letters were granted, and in such others, as on an ex parte statement, the Surrogate may be satisfied will be sufficient to give notice to the creditors of the decedent. Any heedless decision by him in that respect might inflict on creditors the burden of a long litigation at their own expense. The statute, however, requires an exhibition, by the creditor, of his claim, to the executor or administrator, and for that purpose, requires the place of such exhibition to be the residence or place of transaction of business generally by such representative, to be specified in the notice to creditors. (2 R. S., 88, § 34.) If it had intended the mere deposit of a written claim at a certain place to be designated, it would have said so. But it evidently intended to give each creditor an opportunity of a personal interview with the representative, by requiring him to be notified of the place of residence or business of the latter, so as to be able to find him, and know what he had to expect. The next section (§ 35) carries out the same idea by giving the executor, on such presentation, the right to require of the creditor, then present, satisfactory vouchers, and an affidavit in a certain form. If, after all this is done, he still doubts the justice of the claim, the claimant must propose to him to refer it, (Proude v. Whiton, 15 How. Pr., 304,) after which the executor resists *at the peril of costs. The alternative of “residence or place of business” in such notice, shows an intent to designate something actually existing previous to and independent of the order, and not a factitious place of residence or business, created for the purpose, by the order. The provision as to the place, was for the benefit of the creditor, to enable him to find the executor, as it was not necessary that his communication of his claim should be made at that place to the representative ; it would be sufficient, however or wherever made, if it reached him. (Gansevoort v. Nelson, 6 Hill, 389.) The creditor alone has a right to complain that information of the residence or place of business of the representative was not given him by the notice that might defeat his claims, or at least throw on him all the burden of the costs of an obstinate litigation. Much mischief might result to creditors from allowing an executor to select a place to exhibit claims to him, where there is no obligation upon him to be found and no motive to be present. In this case the place specified was declared to be the office of a counsel, and neither the place of business nor residence of the executor. There was no evidence that he could have been found there any time within the six months, except accidentally. The same statute deprives a claimant, who does not exhibit his claim within six months from the first publication of such notice, no matter how long time was given by it, of any right, to the extent of assets distributed by the representative, for debts of inferior degree, or to the next of ldn or legatees, and makes such publication and distribution a bar. (2 R. S., 89, §, 39.) Such stringent consequences require the executor to bring his notice clearly within the statute, and he has not done so in this case. (Jenkins v. Wild, 14 Wend., 545; Argall v. Smith, 3 Den., 437.) The meaning of the words “place of carrying on business,” as used in two English statutes, (9 & 10 Vict., c. 95; 15 & 16 Vict., c. 54, § 4,) has been explained in three leading cases. (Minor v. Lond. & N. W. Railway Co., 1 Com. Bench, [N. S.,] 1 J. Scott, [N. S.,] 331; Shiels v. Gr. North'n Railway Co., 30 Law Jour., [N. S.,] Q. B., 332; Corbett v. Gen. Steam Navig. Co., 4 Hurlst. & Norm., 482.) It was held in those cases that the office of an agent to receive parcels for a railway company, was not their place of carrying on business, for the purpose of being served with process, or to affect a question of costs. In the last case, Maetut, J., observes that “the agents “ were not the servants of the defendants; there is nothing “whatever to show any relation of master and servant “ between them.” So in this case, there was nothing to show that Mr. Grim was a mere servant, so as to make his office that of the defendant. In the case of Belknap v. Hasbrouck, [13 Abbotts’ Pr., 418, n,) where a party transacted business was held not to be necessarily a place of business.

There is undoubtedly great room for questioning the reasonableness of the decision in Dolbeer v. Casey, [ubi sap.] The statute would seem to impose on the executor, the duty of publishing in one county paper, and on the Surrogate, of deciding what other paper, whether in the county or not, was most likely to convey information to creditors. It appeared to contemplate two at least; but I prefer resting on the insufficiency of the notice. The plea in this case sets up a publication in two newspapers, and a distribution of the estate as a bar. If Dolbeer v. Casey, be law, one was equally good if selected by the Surrogate.

The same question as to notice, was evidently before this Court on the former application for costs, after the fourth trial, as appears by the order made, which recites that it was made among other things, upon a copy of the Surrogate’s order and proof of publication, and because it appeared to the Court “ that the demand on which this “action was founded, was duly presented; that the executor refused to refer the same pursuant to the statute, and “ that the payment of the same was unreasonably resisted.” The points of counsel used on such motion, presented the same question. Whether the Court held notice in one newspaper insufficient, the notice defective, or the foreclosure suit to be notice of the claim, or that the defend-ant, the executor, had waived the effect of the publication or misled the plaintiff, does not appear. They evidently decided on the same facts as are now before the Court, that the demand was duly presented. It would hardly be proper, even were I of a different opinion from the learned Judges who made that decision to depart from its authority at Special Term, not as res judicata, but as a decision on the same facts.

There is also great room for holding the plaintiff entitled to costs, against the estate represented by the defendant under the Code of Procedure. (§ 317.) The provision of the Revised Statutes already referred to, (2 R. S., 90, § 41,) prohibits costs in suits against executors, whether to be levied of their property or that of the party represented, unless in the cases therein prescribed; in other words, it exempts both the executors personally, and the estate represented by them from costs.' The section of the Code referred to, (§ 317,) makes a general rule by which representative parties are put on the same footing as to costs, as parties defending in their own right, except that such costs are to be paid out of the estate represented. It, however, enables the Court to charge such a representative personally, when guilty of mismanagement or bad faith. This is immediately followed by an exception, preventing costs from being recovered against executors, (without mentioning in suits against them,) where they are exempt by the provision of the Revised Statutes already cited. This is evidently intended to be a personal exemption, and not a relief of the estate represented, and qualified the immediately preceding provision allowing costs personally. The whole section established a fairer rule, to wit: That the estate to be benefited by a defense, successful, should be chargeable with the expense if it fail..

The motion must be granted, with ten dollars costs, to be costs in the action. , . „ .


author:
Monell, J.
      Robertson, J.

text:
    Edmund Griffin, Plaintiff and Appellant, v. Hiram Cranston, (who was impleaded with Curtis Judson et al.,) Defendant and Respondent.
    1. An absolute and unconditional transfer, by an insolvent retiring partner in a firm which is also insolvent, of all his interest in the partnership propertjr, to the other partner, who thereupon assumes the partnership liabilities, is not rendered void, as against individual creditors of the former, by the fact that, as a part of the consideration of such transfer, the latter agrees to employ the services of the former and his wife, and give them lodging upon "the premises assigned, and to pay the wife a share of the future profits of the business, if any. This does not, necessarily, show an intent by the retiring partner, to defraud his individual creditors; nor does it, by securing to him the beneficial use of a part of the property, create or reserve any trust for his benefit.
    2. The previous decision of this Court in this case, (1 Bosw., 281,) reaffirmed.
    (Before Moncrief, Robertson and Monell, J. J.)
    Heard, October 13;
    decided, November 29, 1862.
    Appeal from a judgment in favor of the defendant, entered upon the decision of the Court, after a trial at Special Term.
    This action was brought by the plaintiff, a judgment creditor of Curtis Judson, against him and Hiram Cranston and George Slater, to set aside an assignment and transfer, made by Judson to the defendant Cranston, and to have it declared fraudulent and void, as to the plaintiff.
    On the 5th of December, 1854, the copartnership theretofore existing- between the defendants, Judson and Cranston, was dissolved by mutual consent. An instrument in writing was, on that day, signed by the respective parties, which provided that the business of the firm was to be settled by Cranston, who alone was authorized to sign the firm name in liquidation. Simultaneously with the signing of the dissolution of the firm, Judson executed and delivered to Cranston, three several instruments, which form the subject of complaint in this action.
    By the first of these instruments Judson, in consideration of one hundred dollars, paid to him by Cranston, sold, assigned, transferred, and set over unto Cranston, all the right, title and interest of Judson, in and to all the property and effects of the firm of Judson & Cranston, of every sort, kind and description.
    By the second of said instruments, Judson acknowledged himself to be indebted to Cranston in the sum of twenty-five thousand dollars, and as security for said sum, he did thereby mortgage, sell and assign unto said Cranston, all his property, of every description, being in the Brevoort House, in the City of Hew York, with power to sell the same and appropriate the proceeds to the payment of said debt.
    By the third instrument Cranston agreed to employ Judson and his wife, in the Hew York Hotel, during the term of the lease thereof, and for any new term Cranston might procure; and, as a compensation for their services, and in consideration of the services of said Judson and his wife, to be rendered to Cranston in such manner as he should direct, Cranston agreed that Judson and his family should be permitted to occupy the rooms at present occupied by them in said hotel, and to have their board therein in addition thereto.
    It was further agreed, in addition to the above, that Mrs. Judson should receive, as a compensation for her services, a share of the profits of the business, equal to and not to exceed the rate of $5,000" per annum, such profits to be ascertained at the end of the term, and not before. Cranston did not guarantee there should be any profits. He agreed that so long as he remained proprietor of the hotel, Judson and family should be permitted to occupy their said rooms, and in case of a voluntary sale he engaged to require the purchaser to enter into a similar arrangement with Judson.
    At the time of these transfers, and of the date of this agreement, Judson and Cranston were partners in the business of hotel keeping, and as such, were the owners of a lease of the premises known as the Hew York Hotel, which lease was to expire on the first of October, 1855. They also owned the furniture and fixtures of the hotel.
    The various agreements above stated are given at. length in the report of a former decision in this case, in 1 Bosw., 281; where a judgment, recovered by the plaintiff, was reversed and a new trial ordered. The cause came up again on a motion to vacate the order for a new trial, but that proceeding, which is reported in 5 Bosw., 658, did not involve the merits of the case.
    The cause was tried again, before Mr. Justice Hoffman", without a Jury, commencing on the 1st of November, 1860. The case upon this appeal contains only the pleadings, the finding of the Court, and the exceptions thereto.
    The Justice found as facts, that, prior to the 5th of December, 1854, Judson had, upon paper made by him, in the name of the firm, obtained the sum of twenty-five thousand dollars, almost all of which he had used for his individual purposes, all of which was without the knowledge or consent of Cranston. Of this amount seventeen thousand five hundred dollars was secured by a mortgage upon the furniture of the Hew York Hotel, which had become due. Part of the moneys raised by Judson on the credit of the firm, was employed in furnishing the Brevoort House, which Judson had then hired.

      The Justice further found, that, at the time of the dissolution Cranston verbally agreed to assume payment of all the debts and liabilities of the firm, including the said sum of twenty-five thousand dollars borrowed by Judson. That the whole value of the property and effects of the firm was $132,354.03. This, however, did not specifically include the good will, as it is termed, and chance of a renewal of the lease, which passed by the transfer to Cranston". The liabilities of the firm, including $8,181.09, balance to the credit of Cranston, was the sum of $131,515.80, leaving a surplus over the liabilities of $838.23. Judson was indebted to the firm in the sum of $13,456.19, which was not included in the amount of assets. The Justice further found that Judson was wholly insolvent. He also found that the firm of Judson & Cranston, if compelled then to go into liquidation would have been insolvent; that the consent of Judson to the dissolution of the firm, the assignment by him of his interest, and the mortgage for $25,000, constituted, collectively, the consideration for Cranston’s assumption of the debts of the firm, and for the employment of Judson and wife; and that the service contract-, and the assumption of such debts constituted, collectively, the consideration for Judson’s consent to dissolve the firm, to make the assignment and to execute the mortgage; that the four instruments were executed on the night of the 5th of December, 1854; the instrument of dissolution first, the assignment second, the mortgage third, and the service contract last; but all were delivered together, and were made parts of the same transaction in the sense that they respectively formed the consideration of the divers engagements of the parties.
    The Justice further found that the mortgage of $25,000 was given to secure Cranston for any indebtedness of any kind, which, upon a final accounting, it might appear Judson owed him, and also to indemnify him against any liabilities of the firm then undiscovered. That since the dissolution Cranston had assumed payment of a large part of the debts created by Judson, among them debts to Whiting and Turner amounting to $18,500; so that Judson had been discharged from any liability to such creditors. That there was no agreement to reinstate Judson in the same relation as before the dissolution, when he should have settled with his creditors, or that he should share in the benefit of the renewed lease. That Judson subsequently, for the consideration of $6,700, assigned to Bininger & Clark the said service contract, and that Cranston gave to them his individual bond for $6,700.
    The action in which judgment was recovered by the plaintiff against Judson, was upon contracts made by Judson before the 5th of December, 1854.
    The Justice then found that there was no fraud or fraudulent intent in fact, in the agreement and settlement of the 5th of December, 1854, to hinder, delay or defraud the individual creditors of Judson, nor in the various instruments executed on that day between the parties, nor in any or either of them.
    Upon these facts the Justice declared the dissolution of the copartnership between Judson and Cranston, and the assignment of the partnership property by Judson to Cranston, to be legal, valid and effectual as against Judson and his creditors, and that there was no fraud to be concluded from the instruments themselves. He accordingly adjudged that the complaint should be dismissed with costs. To these conclusions the plaintiff excepted.
    D. D. Field, for plaintiff, appellant.
    I. The transfers of Judson’s property and interest to Cranston were made partly in trust for Judson’s use: 1. The contract securing to him and his family rooms and board, &c., was the reservation to Judson of such a beneficial use in property which he had absolutely assigned, and not merely mortgaged, as comes within the condemnation of the statute in relation to transfers of property, in trust for the use of the vendor. (2 R. S., 135, § 1.) The assignment is, therefore, void. (Goodrich v. Downs, 6 Hill, 438; Barney v. Griffin, 2 N. Y. R., 365; Curtis v. Leavitt,

      15 Id., 204.) 2. But the reservation or trust for Judson’s benefit appears from the circumstances that he was to render service, and, in consideration of it, was to receive lodging and board, but no wages; and the compensation of Mrs. Judson’s services he was entitled to, and his creditors were entitled to the benefit of that right. (Tripp v. Childs, 14 Barb., 85.) And this benefit was to accrue to Judson in virtue of, and out of his interest in the hotel property.
    II. The transfers of Judson’s property and interests, effected by this instrument, were made with the intent to hinder, delay or defraud his creditors. (2 R. S., 137, $ 1.)
    When the law declares an instrument to be fraudulent upon its face, no evidence of intention can change the legal conclusion. It matters nothing how the question of fraud in fact may stand. (Seymour v. Wilson, 14 N. Y., [4 Kern.,] 569; Edgell v. Hart, 9 N. Y. R., [5 Seld.,] 216, 217; Dunham v. Waterman, 17 N. Y. R., [3 Smith,] 20, 21.)
    I. The necessary effect of the transaction between Judson and Cranston was to place the earnings of the former beyond the reach of his creditors, in the shape of profits payable to his wife. (Janes v. Whitbread, 20 Law Jour., N. S., Part II, Com. B., 217.) 2. Having the salary reserved to his wife, discloses an evident intent to.place it beyond the reach of his creditors. 3. Either the assignment or the mortgage was without consideration; for if the consideration of the transfer was Cranston’s agreement to pay Judson’s individual debts, contracted in the name of the firm, then there was no consideration for the mortgage, and if the consideration of the mortgage was Cranston’s agreement to pay these debts, then there was no consideration for the transfer.
    III. The four papers being parts of one instrument, any fatal vice in either affects and vitiates all the rest, and avoids the whole transaction.

      Horace F. Clark, for defendant, respondent.
    I. The allegation of fraud was disproved by the evidence, and the finding of the Judge upon that question is conclusive. This is, by the statute, a question of fact, and no inference- of fraudulent intent in the transaction .can be drawn.
    II. All the points urged by the plaintiff have been expressly decided in this Court at General Term. (See Griffin v. Cranston, 1 Bosw., 281.)
   Monell, J.

The evidence taken on the trial, of the action not having been incorporated in the case upon which this appeal was heard, we are not called upon to review any of the findings of fact, except the finding that there was no fraud in the transaction between Judson and Cranston, nor any intent to hinder, delay or defraud the individual creditors of Judson. We are to assume that all the other facts found by the Court are sustained by the evidence. The sole question therefore is, is there, upon the face of the several instruments, executed between Judson and Cranston, on the 5th of December, 1854, in connection with the facts found by the Court, intrinsic and inherent evidence of an intent, by Judson, to hinder, delay or defraud his individual creditors ? These several papers are parts of one entire transaction, and are to be read and construed as if incorporated into one instrument ; and we are to determine from them, collectively, whether they contain proofs of a fraudulent design, on the part of Judson. The finding of the Justice, of the consideration of the $25,000 mortgage, might be open to question, had we the evidence before us. From the instrument itself, it does not seem to have been executed for any other purpose than is therein declared, namely, as a security for the sum of $25,000. But we cannot say what evidence there may have been admitted, without objection, which justified the finding that it was given to secure Cranston for any indebtedness of any kind, and to indemnify him against any liabilities of the firm then undiscovered.

The grounds upon which the plaintiff claims the transaction to be fraudulent and void, as to the individual creditors of Judson, are first, that the effect was to remove from the reach of his creditors, not only all his present property, but also all future benefits which might accrue to him in respect to it; and second, that it secured to Judson and his family a beneficial use of the property, or of some part of it, notwithstanding the assignment.

The only evidence of any intent, on the part of Judson, to remove from the reach of his creditors, the future benefits which it is alleged he hoped might accrue to himself, in respect to the property assigned, is found in the service contract, where it is agreed that, in consideration of the services of Judson and his wife, he was to be allowed to occupy the rooms in the hotel then occupied by them, to have their board, and she, Mrs. Judson, to have a share of the profits of the business equal to, and not exceeding the sum of $5,000 per annum. By the terms of this agreement the only compensation which Judson was to receive for his services was, the use of the rooms then occupied by him and his wife, and their board in the hotel. So far, only, is he a party to the contract. All the other stipulations concern Ms wife, and not himself. It is agreed that she shall receive, as a compensation for her services, a share of the profits, equal to, but exceeding $5,000 per annum. There is no guarantee of profits, nor has she or her husband any right to an account of the profits or of the business, until the expiration of the term, which was to continue during the term of the lease, and of any renewal thereof. Mrs. Judson was a party to the contract, and as far as she could be, was bound by its provisions. It is not necessary here, to inquire whether such an agreement could be enforced against Mrs. Judson, nor whether the $5,000 compensation for her services did not belong to her husband, and might not be seized by his creditors. It has been assigned by Judson and his wife to one of his creditors, and is not sought to be reached by this action.

Judson was insolvent and embarrassed, a debtor to the firm in upwards of $13,000, the firm’s assets less than its liabilities, and itself on the verge of bankruptcy. In this state of affairs Judson transferred to Cranston all his interest in the partnership property and effects, gave a mortgage to secure Cranston for any indebtedness of any kind, which, upon a final accounting, might appear that Judson owed him, and to indemnify him against any liabilities of the firm then undiscovered. As a consideration moving to Judson, Cranston assumed all the debts, and agreed to give employment to Judson and his wife in the hotel, and to allow them to occupy rooms therein.

Although the effect of this employment was to secure a benefit to Judson, I cannot see in it any evidence of an intent to defraud his individual creditors. The interest of Judson, at the time of the transfer, in the hotel property and partnership effects, was of no value whatever. The partnership debts were first to be paid, and the firm, if compelled to go into liquidation, was insolvent. The partnership creditors would have exhausted all the partnership property, leaving nothing for individual creditors. There was no trust, express or implied, created for Judson’s use. .His entire interest in the property was conveyed to Cranston, without reservation or restriction. He parted with all control over and right to it, and the Justice has expressly found as a fact, that there was no agreement that he should be reinstated in the relation he had before the dissolution, when he should have settled with his creditors, or that he should share the benefit of the renewed lease. In short, I cannot discern, that after this transfer to Cranston, Judson had any more right to or interest in the assigned property than any servant who might on that day have entered into the employment of Cranston, in the hotel.

There is no extrinsic evidence of fraud in this case. Ho facts or circumstances are shown which would produce conviction on the mind, that Judson designed to hinder, delay and defraud his creditors. From the service contract alone we are called upon to spell out such a fraudulent intent. To vitiate this sale, there must have been fraud in fact; (what was formerly denominated fraud in law, no longer exists;) (Cunningham v. Freeborn, 11 Wend., 240; Wilson v. Robertson, 21 N. Y. R., 587, 592;) and we must be able to say that the provisions of the instrument are such, that when carried out to their apparent and reasonable intent, it will be fraudulent in its operation. We cannot presume fraud when the instrument admits of a contrary construction. (Kellogg v. Slauson, 15 Barb., 56; 11 N. Y. R., 302.)

The only future benefit which was likely to accrue to Judson, by the transfer, was exemption from liability for the debts of the firm. This was a sufficient consideration for the sale. The debts assumed by Cranston were equal to the assets, if not in excess of them, and were entitled to preference in payment, to the individual creditors of Judson.

Although it was a part of the arrangement that Judson and wife were to be allowed the use of the rooms in the hotel then occupied by them, yet this was not a benefit derived from the transfer, but from an independent agreement, to be compensated for to Cranston, by the future services to be rendered by Judson and wife. Part of the inducement for the sale doubtless was, that Judson should be taken into the employment of Cranston; but the transfer was absolute, and complete, without reservation, and did not secure such a future benefit from the assigned property as would render the assignment void. Board and lodging were all Judson and wife were to receive for their services unless there were profits, and the contingency of profits was to depend, in some degree, upon their own exertions.

But it is also claimed by the plaintiff that the transfer secured to Judson and his family the beneficial use of a part of the assigned property; that it, in effect, created a trust in favor of Judson; and for these reasons was void. There was no reservation by Judson of the rooms in the hotel, which would give him the right of entry, or to avoid the sale, if entry was denied. His conveyance was absolute, and under his contract he would have no more than a simple right of action for damages.

The cases to which we were referred by the plaintiff’s counsel were reservations of parts of the assigned property for the benefit of the assignor; thus in Goodrich v. Downs, (6 Hill, 438,) the assignment was to pay a part of the creditors, and if any surplus remained, to pay it to the assignor. The assignment did not provide for the payment of all the debts. It was held void as creating a trust for the benefit of the assignor. In Carpenter v. Underwood, (19 N. Y. R., 520,) the assignment was of all the assignor’s property “except a claim he held against S. H. & P. C., then in suit in the Supreme Court.” The Court say here is no reservation for the advantage or benefit of the assignor, and held the assignment valid.

All these questions, as far as my investigations have gone, have arisen in cases of assignments in trust to pay creditors, and none of them in cases where there has been a sale of all the interest of the assignor, for a sufficient consideration ; and although the language of the statute comprehends a transfer absolute on' its face, but intended to create a trust in favor of the transferrer, and although every transfer of property necessarily removes it from the reach of creditors and tends to hinder and delay them, still, if the transfer is made for a proper object, and with an honest purpose, it is not void.

Again, if the transaction between these parties can be regarded as providing for the future employment of Judson and wife, in the same business theretofore carried on by Judson and Cranston, it does not follow that the assignment and transfer were void. Provisions in assignments authorizing the assignee" to employ agents for the purpose of executing the trust, have always been upheld, (Burrill on Assignments, 1st ed.,‘ 205, 442,) and do not furnish any evidence of a fraudulent design.

As a consideration in part, for an absolute and unconditional transfer of all the interest of Judson in the partnership property and effects, it was lawful and consistent with an honest purpose for Cranston to take Judson into his service, and to agree to give to him and his wife board and .lodging, and a further compensation if the business earned it. That no trust was created thereby in favor of Judson, nor was there any benefit secured to him which would evince an intent to hinder and delay his creditors, is, to my mind, most manifest.

The rights of the individual creditors of Judson were subordinate to those of the creditors of the firm ; and the only interest the former could reach, was that remaining to Judson, after the payment of the firm debts. It seems to me, therefore, that the only ground upon which the individual creditors of Judson could successfully attack this transfer, is, that the consideration was inadequate, which, in conjunction with other facts, might render the sale void.

Not being called upon, as already stated, to review the findings of fact in this case, further than the alleged fraud appears upon the face of the papers, we are relieved from all difficulty, if any existed, by the previous decision of the Court in this case. (1 Bosw., 281.)

When the case was up before, it was upon an appeal from a judgment in favor of the plaintiff, declaring the transfer and assignment void. The same facts found on the second trial were found, substantially, on the first, but with a different result. The Court, on appeal, reversed the judgment, holding (p. 310) that “the fact of making this agreement with Judson, for the services of himself and wife, considering the peculiar circumstances under which it was made, furnishes no satisfactory evidence that Judson transferred his interest in the hotel, with intent to defraud his creditors.”

I see no reason why the findings and conclusions of the Justice upon this trial should be disturbed.

The judgment should be affirmed.

Robertson, J.

This is an action brought by a judgment creditor of the defendant, Judson, to set aside two instruments executed by him to the defendant, Cranston, on the 5th of December, 1854. The first of those instruments is a release by Judson to Cranston of all his interest in a partnership previously existing between them. The second is a mortgage executed by Judson to Cranston for $25,000, on certain chattels then in a building known as the Brevoort House. The case contains none of the evidence, and only the findings of the Court. Among those findings is one, that there was no fraud or fraudulent intent in fact, in the execution of such instruments, and another, that such two instruments were executed on the day of their date, as part of one transaction, with two other instruments which were executed on the same occasion ; one being a dissolution of the partnership contract theretofore existing between Judson and Cranston, and the other, what is termed a service contract, signed only by the latter, for the employment by him of Mr. and Mrs. Judson, for certain compensation. It was also found that such four instruments formed the consideration for each other; that Cranston agreed verbally to assume the debts of the concern then known, and the mortgage of $25,000 was executed to secure him for any indebtedness of Judson to him, and for any undiscovered liabilities of the concern.

Nothing on the face of either of the instruments assailed shows any fraud, but it is claimed that the service contract, being part of the consideration for them, shows that they were for a fraudulent purpose. The statute against fraudulent conveyances makes every instrument void, which is made with an intent to hinder, delay and defraud creditors, (2 R. S., 137, § 1;) but it also makes such a fraudulent intent a question of fact and not of law. (2 R. S., 137, § 4.) Courts have, however, assuméd, that the intent of an instrument may be gathered from its face, and, no evidence being admissible to contradict it, that where a fraudulent, intent is apparent intrinsically, it must be taken as conclusive, evidence of the intent to defraud which makes, the instrument void. The moment, however, extrinsic evidence becomes necessary to show the fraud, the intent becomes a question of fact, and must be decided as such. The learned Judge has found, in this case, against such an intent, as a fact; and there is certainly nothing in his. other findings to entitle this Court to overthrow his judgment upon that point.

I have not been able to find any case, nor has any been pointed out. to us, in which it is held, that where cotemporaneous instruments are to be had recourse to, to establish a fraudulent intent in an instrument, it becomes the less a question of fact, since they are introduced as mere evidence at large, are not conclusive, and other evidence may be equally well introduced to rebut the inference. It is possible that when they are mutual considerations-for each other, and no other circumstances are added, it may become a question of law notwithstanding the rigorous wording of the statute. But then the fraudulent character of either must depend exclusively upon the intended fraud manifested upon the face of both, without regard to any extrinsic facts not necessary to give a legal interpretation to their terms. _

The service contract, the terms of which are said to render the mortgage and assignment void, provides for the employment of Mr. and Mrs. Judson during the continuance of an existing lease and any new term, by Mr. Cranston, in such manner as he should direct, in the Hew York Hotel, for conducting which the partnership had been created, as a compensation for which they were to be allowed their board, and to occupy certain rooms then occupied by them in such hotel, as long as Cranston was proprietor, and Mrs. Judson was to receive, as a compensation for her services, a share of the profits of the business not exceeding $5,000 a year, to be ascertained at the end of the term. Cranston agreed, in case of a sale, to secure a similar agreement from the purchaser. It contained no guaranty of profits..

Of course in determining on the fraudulent intent manifested by such agreement, all accompanying occurrences, such as the conduct of the retiring partner, his debts and liabilities, the relative value of the partnership property and debts, and all others must be discarded. The whole controversy is narrowed to a single question, whether an agreement to dissolve a partnership, transfer the interest of a retiring partner to a continuing one, and secure the latter against anymore than certain liabilities of the partnership, and also for any indebtedness of the retiring partner, is made fraudulent and void, by taking therefor an agreement to be allowed rooms and board for the retiring partner and his wife, in the hotel which the partnership previously held jointly, and an interest in the profits to be paid to the wife, in consideration of such retiring partner and his wife remaining in the employment of the continuing partner.

After the lease was transferred, the continuing partner had exclusive dominion over all parts of the building; an agreement to allow any one to occupy a room in it, was not a lease of it; if it were, there is.no legal objection to a person’s leasing all but certain parts of a building; those parts may be subject to his creditors’ claims, but their reservation will not make the lease void. If there is any disproportion between the services and compensation, it is not apparent judicially. Nor do I know any rule of law to prevent a contract for services with a husband and wife, for money to be paid to the wife, or even allowing her to have a share of profits; if there is, his creditors can still reach such amounts as may become due.

This Court cannot judicially determine, that the interest sold by the defendant, Judson, was worth more than his, contract with the defendant, Cranston; and, as I have already stated, all other considerations are excluded. The assignment and mortgage were, therefore, valid.

This conclusion is the same as that arrived at by this Court previously, when the case was before it, (1 Bosw., 310,) and the circumstances are not in any degree altered.

I concur in affirming the judgment with costs.

Moncrief, J., also concurred in affirming the judgment.

Judgment accordingly.


author: By the Court—Robertson, J.

text:
    John C. Martin et al., Plaintiffs and Respondents, v. Charles Kunzmuller et al., Defendants and Appellants.
    A demand which has been assigned to assignees for the benefit of creditors, is not subject to have set off against it, in their hands, a demand against the assignors, which was purchased by their debtors, but had not become payable at the time of the assignment.
    (Before Moncrief, Robertson and Monell, J. J.)
    Heard, October 13, 1862;
    decided, November 29, 1862.
    Appeal by the defendants, Charles Kunzmuller and Frederick Kunzmuller, from a judgment entered in favor of the plaintiffs, John C. Martin and John W. Graydon, on a verdict recovered on the trial of the cause on the 16th of May, 1862, before Mr. Justice White and a Jury.
    In April, 1861, the defendants bought, at a large discount, three promissory notes of Graydon, McCreery & Co., one of which did not become due until the latter part of the following month. Before such note became due, in May, 1861, the firm of Graydon, McCreery & Co. assigned their property to the plaintiffs, to pay their debts, which exceeded the value of such property. In that assignment, two claims for goods sold by the assignors to the defendants were embraced, one due, and the other not to become due until some time afterwards.
    The defendants claimed to offset the note of Graydon, McCreery & Co., due in May, 1881, against the plaintiffs’ demand. The presiding Justice on the trial refused to allow such set-off to be made, to which refusal an exception was taken. The Jury found a verdict accordingly for "the plaintiff, without deducting the amount of such note. Prom a judgment thereon an appeal is now taken.

      John A. Mapes, for defendants, appellants: —
    Cited, Story on Equity, § 1228 ; Griffin v. Marquardt, (17 N. Y. R., 28,) Van Heusen v. Radcliff, (Id., 580,) Slade v. Van Vechten, (11 Paige, 21,) Matter of Howe, (1 Id., 128,) Curtis v. Leavitt, (15 N. Y. R., 195,) Knowles v. Lord, (4 Whart., 507,) Pierson v. Manning, (2 Mich. R., 453,) Fitch v. Bates, (11 Barb., 481,) Van Dusen v. Worrell, (18 Barb., 409,) Maas v. Goodman, (2 Hilt., 275,) Chance v. Isaacs, (5 Paige, 592,) Lindsay v. Jackson, (2 Paige, 581,) Schieffelin v. Hawkins, (14 Abbotts’ Pr., 112,) The Receiver, &c. v. Paterson Gas Light Co., (3 Zabriskie, 283,) Bruyn v. Receiver Middle Dist. Bk., (cited in 9 Cow., 409, Note A.,) Miller v. Receiver Franklin Bk., (1 Paige, 444,) Bemis v. Smith, (10 Met., 194,) Phelps v. Rice, Id., 128,) Jarvis v. Rogers, (15 Mass. R., 407;) Smith’s Leading Cases, vol. 2, p. 323 ; 3 Revised Statutes, 5th ed., p. 635, §§ 10 and 11; Id., 636, § 16; Id., 115, § 9.

      John E. Parsons, for plaintiffs, respondents: —
    Cited, Beckwith v. The Union Bank of New York, (4 Sandf., 604, aff’d 5 Seld., 211,) Myers v. Davis, ([8 Smith] 22 N. Y. R., 489,) U. S. T. Co. v. Harris, (2 Bosw., 91,) Watt v. The Mayor, &c., (1 Sandf., 23,) Wells v. Stewart, (3 Barb., 40,) Keep v. Lord, (2 Duer, 78,) Bradley v. Angel, (3 Comst., 475,) Hicks v. McGrorty, (2 Duer, 298.)
   By the Court—Robertson, J.

There is no doubt that for some purposes, assignees to pay debts, being representatives of creditors, are not bona fide purchasers for value; but they are in no sense representatives of the assignors, except as to a surplus, where there is one. The indebtedness of the assignors forms a valid consideration for the transfer, and all their interest in claims transferred ceases until their debts are paid. If their debts exceed the value of the .assigned property, (and this fact an assignment always asserts,) they have no interest. Of course such an assignment cannot .defeat an equity or a defense affecting the merits of the claim assigned, but is a set-off such a defense or,equity? If it is, debtors of an insolvent might buy up enough claims against him to liquidate their liabilities, and leave nothing for other creditors ; and the vendors of such a claim could put the vendee in a better situation than they could any other person, and better than they were in themselves.

Until both-of two mutual claims have become due, the owners of neither have an absolute right, legal right, to offset one against the other; one may be sued upon and .judgment recovered thereon-before the other becomes due. The mere existence of that other, forms no defense; they are therefore, not strictly concurrent claims ; either party can transfer the right to his claim to a third person, wholly freed from the clog of the other, unless both are past due. In most cases, notice of an adverse defense is equal to want of a valuable consideration, in order to render a purchase mala fide, but no notice of a mutual claim nor due would make the purchase of a claim past due, such. The party holding a claim may elect to sue upon it, instead of setting it off, and then it clearly would be no defense. That right of election ought not to prejudice a transferee in good faith.

The Revised Statutes recognize the right of .set-off at law in certain cases of assignments, thereby tacitly excluding it in others. Thus in the case of the assignment of . all contracts other than promissory notes, they permit the set-off of any demand against the plaintiff or assignee of such contract, belonging to the defendant before notice of such assignment, but existing at the time thereof, “ if otherivise capable of being set-off.” (3 R. S., 5th ed;, 354, § 12, sub. 10.) But in the case of promissory notes, in an action thereon'against any party thereto, they allow the offset of any demand owned by such party after such note became due. (Id., sub. 9.) In the case of assignments by force of law, produced by the death or insolvency of a debtor-creditor, the same statutes, in order to prevent a transfer by the representative or assignee so as to defeat the claim of a creditor-debtor not due at the time of the death or assignment of the former, render such claim due forthwith, and allow a rebate of interest. (3 R. S., 5th ed., 636, § 16; Id., 115, § 9.) All such provisions strongly show the views of the revisers and the Legislature as to the rule of law.

The refusal of the learned Judge to allow the offset is fully sustained by authority.

In Watt v. The Mayor &c., (1 Sandf., [S. C.,] 23,) where a claim had been sold to a bona fide purchaser, it was held a counterclaim could not be set off, because not due at the time of the purchase. In Wells v. Stuart, (3 Barb., 40,) assignees in trust for creditors were held to be bona fide purchasers for such purpose. And that view is sustained in Beckwith v. The Union Bank, &c., (4 Sandf., 604; on appeal, 5 Seld., 211,) Myers v. Davis, (22 N. Y. R., 489,) United Trust Co. v. Harris, 2 Bosw., 91,) Keep v. Lord, (2 Duer, 78,) Bradley v. Angel, (3 Comst., 475,) and Hicks v. McGrorty, (2 Duer, 298.) In the case of Maas v. Goodman, (2 Hilt., 275,) in a court of coordinate jurisdiction with this, (N. Y. Com. Pleas,) it was held, that a debtor who was sued upon a claim assigned in trust to pay creditors, could set off a claim which had matured before the assignment, where it did not appear but that the original assignor had still an interest by the excess of the assigned property beyond the debts secured. Of course the distinction is palpable, because there both claims had become due before the assignment, and it did not appear but that the original creditor was still the owner.

The judgment, therefore, appears to me to be correct, and should be affirmed with costs.


text:
    Clara A. Davenport, Plaintiff and Respondent, v. Elisha Ruckman et al., Defendants and Appellants.
    1. A municipal corporation, possessing the legal power, and furnished with the means, to construct and keep in repair highways and streets within their jurisdiction, are liable to every one who may be injured by their neglect to repair defects therein after notice.
    2. No distinction exists between sidewalks and carriage-ways, in respect to the duty of the Corporation of the City of New York in this respect.
    3. Such City Corporation are liable for injuries sustained by means of an unguarded and uninclosed excavation or area, made within the bounds of the highway, by a private individual, which such Corporation fail to guard or repair, within a reasonable time after notice of its existence and unprotected state.
    4. Notice to them of the existence of such excavation may be inferred by its continuance undisturbed for a long time.
    5. A person of impaired vision, who still has sufficient power of sight to go with reasonable confidence of safety through the streets, if kept in such condition as it is the duty of the Corporation to keep them, may recover for injuries sustained by reason of an excavation which a person of good sight might have avoided.
    '6. One who comes into possession of premises, attached to which there is an •excavation encroaching upon the highway, may be regarded as so sanctioning it, as to be liable for an injury sustained by a passer-by in consequence of it.;
    7. The fact that before the accident he had leased the premises to another person does not alter the case.
    (Before Moncrief, Robertson and Monell, J. J.)
    Heard, October 14;
    decided, November 29, 1862.
    The exceptions, taken on the trial of this cause before Mr. Justice White and a Jury, on the 11th of April, 1862, were by him directed to be heard in the first instance at the General Term, and judgment meanwhile to be suspended.
    The action was brought by Clara A. Davenport against Elisha Ruckman and the Mayor, Aldermen and Commonalty of the City of Hew York, to recover damages for injuries .sustained by the plaintiff in falling into an excavation made in the sidewalk of a public avenue, in the City of Hew York, and not sufficiently guarded, in front of a building on such avenue, of which the defendant Ruckman had a lease.
    The excavation in question was an area or cellar-way, below the level of the pavement, extending on the sidewalk six feet in front of the line or side of the street, with descending steps, to a cellar-way in the front wall of the building. It was not covered or railed in at the time of the accident, and had been in the same condition for some time previous. It had been once inclosed by wooden doors, and at another time by an iron railing, which had long previously been removed.
    The defendant, Ruckman, did not make the excavation, but was the assignee of a lease for twenty-five years, of the premises behind it, into which the steps in it led, and by such lease became owner of the buildings to be erected during the term. They were occupied at the time of the accident by a tenant of his, (Lamb,) who with him agreed to put the premises in repair. The defendant, Ruckman, never repaired the premises, was frequently there to collect his rents, and paid his own.
    The plaintiff’s organs of sight, at the time of the accident, were affected by disease, so as to diminish her powers of vision considerably, yet she could distinguish persons and colors, and “objects having a distinct outline.” Just previous to the accident, she had encountered other risks of accident from defective vision.
    A verdict having been rendered for the plaintiff with damages, various exceptions taken on the trial were ordered to be heard first at General Term.
    One exception was taken to a refusal to dismiss the complaint and others to instructions to the Jury, and refusals to charge as requested.
    The counsel for the defendants, the Corporation of the City of New York, requested the Court, among other things, to charge, in substance, in reference to their duty, as follows:

      First, They were not bound to see that such an opening as that into which the plaintiff fell was closed in the daytime.

      Second, They were not bound to see that the streets were in such a condition as to be safe for a blind person to pass without a guide.

      Third, They were not liable, unless the opening into which the plaintiff fell was of such a character as to have been dangerous to persons in possession of their sight, and exercising ordinary care.
    And, in reference to the conduct and negligence of the plaintiff,

      First, She was bound to use more than ordinary care in passing along the sidewalk.

      Second, It was negligence for her to walk upon the sidewalk without a guide, if she was unable to determine for herself whether it was free from obstructions or excavations.
    The counsel for the defendant, Ruckman, requested the Court to charge the Jury, in substance, among other things, in reference to his liability for the injury to the plaintiff: (1.) That he was not in possession of the premises at the time, but his tenant, Lamb, was, who had been so for six days before the date of the lease to him, and was bound by his lease to keep the premises in repair; (2.) That Lovett or Mitchell owned them in fee; and, (3.) That the defendant knew- nothing of the removal of a railing adjoining the excavation in question, and was prevented from repairing by Lamb; and also in reference to the condition of the excavation, that the plaintiff could not recover, unless a person with ordinary vision, using ordinary care and prudence, passing along the sidewalk in broad daylight, would be unsafe or liable to be injured from the unsafe condition of the area; and, lastly, that the plaintiff was guilty of negligence in going into a public street in her condition.
    The Court instructed the Jury, as to the duty of the Corporation in reference to excavations of this kind, that it was “their duty to see that places of that description “were kept in a safe condition;” there was in an ordinance passed by them, “an implied permission to construct them in the manner prescribed,” and when made with such permission, they are “responsible for injuries “necessarily resulting from them.” “It is their duty to “see that such places are'maintained in a proper and safe “ condition;” and, in reference to their being chargeable with notice of “the dangerous condition of any such opening,” that “if it had been a recent occurrence * * * an express “notice of some kind” to them “would be required; but “ where the dangerous condition of the street or sidewalk “has continued for a long space of time, such express “notice is not necessary.” They “may be reasonably “presumed to have become acquainted with the condition of the street in this particular.” They have “ample means and every facility secured to them for fulfilling their duties and seeing that all dangerous places “in .the public streets are properly- guarded; they are “bound to fulfill that duty, and if they neglect it are to “be held responsible.”
    In reference to the plaintiff’s negligence in going into the street, unattended, in the actual condition of her organs of sight, the Court charged the Jury, “that the circum- “ stance that she was partially blind, and fell into this “opening in the daylight,” was not “ of any importance,” (to which the defendant’s counsel excepted.) The question was “ whether it was so improper and imprudent for “the plaintiff to have gone into the street unattended in “her then condition of sight, that it would be negligence “on her part to do so.” But if she “possessed sufficient “sight to give her reasonable assurance that she might “travel the streets safely, while they were in a good and “proper condition—in the condition in which the defendants were bound to maintain them—she would not be 1 guilty of negligence in going abroad unattended.” “ The 1 assumption in law must be that the streets are in good condition, and the question to be determined by the Jury ‘ was, had the plaintiff sight enough to go with reasonable “assurance of safety through the streets,” if they were kept in good condition. To these instructions the defendants’ counsel excepted.
    The Court instructed the Jury also, that the defendant, Euckman, was to be considered the owner of the house, and it was “his duty to provide proper guards for the “ opening and see that it was safely kept,” also to “have “ it in a safe condition at the time the house passed from “him to his tenant,” and “he was responsible, whether “allowed to put it in repair afterwards or not,” if the premises “ were in a bad, unsafe condition before he gave “ it to his tenant and placed the property out of his con- “ trol negligently or carelessly.” To these instructions the defendant Ruckman’s counsel excepted.
    Other exceptions are referred to in the opinion of the Court.

      E. T. Gerry and W. Curtis Noyes, for plaintiff.
    I. A cause of action against the Corporation of the City of New York was fully made out, and, upon the evidence, they were clearly liable. (Citing 1 Chitty on Pl., 77; Mayor of Lynn v. Turner, Cowp., 86; Riddle v. Proprietors of Locks, &c., 7 Mass. R., 169; Goshen Turnpike Co. v. Sears, 7 Conn., 86; Bailey v. Mayor, &c., of N. Y., 3 Hill, 531; affirmed, 2 Denio, 433; Grant on Corp., 501; Kent’s Charters of N. Y. City, 99, 100, 235-239; Wilson v. The Mayor, &c., 1 Denio, 596, and 601, per Beardsley, J.; The Mayor, &c., v. Furze, 3 Hill, 612, and 615, per Nelson, Ch. J., and cases there cited; Hutson v. Mayor, &c., of N. Y., 5 Seld., 163; Rochester White Lead Co. v. City of Rochester, 3 Comst., 463; Weightman v. Corporation of Washington, 1 Black, U. S. R., 39; Dargie v. Magistrates, &c., of Forfar, 27 Scottish Jur., 311; Innes v. Magistrates of Edinburgh; Morison’s Dict. of Decis., 13,189; Hay on Liab., 1, 214.)
    II. The Corporation, by the passage of an ordinance imposing the duty of keeping such areas securely guarded, upon the owners of property, did not thereby exempt itself from liability, as it could not delegate its duties to others. (Revised Ordinances of 1859, p. 258, §§ 12, 13, 14; Wallace v. The Mayor, &c., 2 Hilt., 440; S. C., 9 Abbotts’ Pr., 40; 18 How. Pr., 169; Storrs v. City of Utica, 17 N. Y. R., 104; Conrad v. Trustees of Ithaca, 16 Id., 158.)
    III. Nor was it necessary to show affirmatively actual notice, because, upon the evidence, and as matter of law, such notice will be presumed. (Wallace v. The Mayor, supra.)

    IV. In any aspect of the case the defendant, Ruckman, was liable for the injuries sustained. (Taylor’s Landlord and Tenant, §§ 178,192; Ex parte Saffron Hill, 18 Jurist, 1104; Cheetham v. Hampson, 4 Durnf. & East, 318; Quarman v. Burnett, 6 Mees. & Wels., 499; Rich v. Basterfield, 11 Jurist, 697, and cases there cited ; Daniels v. Potter, 4 C. & P., 262; Hounsell v. Smyth, 7 Com. Bench, N. S., 730, 745; Proctor v. Harris, 4 C. & P., 337; Hardcastle v. South Yorkshire R. R. Co., 4 Hurl. & Nor., 74; Congreve v. Smith, 18 N. Y. R., 79.)
    V. There was no evidence of any negligence on the part of the plaintiff to bar her right to recover. (Dargie v. Magistrates, &c., of Forfar, 27 Scottish Jur., 311; Hay on Liab., 208, 215; Regina v. Train, 3 Fost. & Fin., 22; The Same v. United Kingdom Teleg. Co., Id., 73.)
    VI. The exceptions taken by the defendants to the admission of evidence in regard to the sale of the book in which she was engaged, were not well founded. (Sedgw. on Dam., 554-556, and cases cited in notes; Caldwell v. Murphy, 1 Duer, 233; S. C., affirmed, 1 Kern., 416.)
    VII. The defendants were properly joined in this' action as such, for their joint negligence caused the injuries complained of. (Colegrove v. N. Y. & N. H. R. R. Co., 20 N. Y. R., 492.)

      H. H. Anderson, for defendants, the Mayor, &c., of N. Y.
    I. The Court erred in refusing to nonsuit the plaintiff, for she was not free from fault.
    II. The Court erred in refusing to charge, that the plaintiff was bound to use more than ordinary care in passing along the sidewalk. Also, that unless the opening into which she fell was of such a character as to have been dangerous to a person in possession of his sight and exercising ordinary care, the defendants, the Corporation, are not liable. Also, that if she was unable to determine for herself whether the sidewalk was free from obstructions or excavations, it was negligent for her to walk upon it without a guide. Also, that the Corporation of New York is not bound to see that such an opening as that in question is closed in the daytime. Also, that the Corporation is not bound to see that the streets are in such a condition as to be safe for' blind persons to pass along them without guides.
    The Court also erred in charging, that the circumstance that the plaintiff was partially'blind, and fell into the opening in the daylight, was of" no importance. And that the only assumption which the defendants could require the plaintiff to act upon was, whether her sight was such as to give her a reasonable assurance of safety in traveling through the streets.
    This makes the defendants responsible for the plaintiff’s erroneous judgment. The- Jury, probably, based their verdict upon the ground, that the plaintiff herself thought that her sight was good enough—that she had, in her own mind, such an assurance as the Court has described; but the event proved that she was mistaken.

      E. A. Doolittle, for defendant, Ruckman.
    I. The Court erred in refusing to dismiss the complaint. The evidence shows, beyond a question that plaintiff was negligent in going along a public street without a guide-while her. vision was so much impaired.
    II. The Court erred in charging the Jury, that the circumstance that the plaintiff was partially blind, and fell into the opening in the daylight, need not be taken into consideration as against her right to recover. (Butterfield v. Forrester, 11 East, 60; 23 How. Pr., 166; 19 How. Pr., 199;
      Johnson v. H. R. R. R. Co., 20 N. Y. R., 65; Button v. H. R. R. R. Co., 18 Id., 248; Daniels v. Potter, 4 C. & P., 262; Button v. H. R. R. R. Co., 4 Smith, 248; Willetts v. Buffalo R. R. Co., 14 Barb., 585.)
    It has repeatedly been held negligence to suffer an infant of tender years to be in or upon a public street unattended. (Hartfield v. Roper, 21 Wend., 615; Lehman v. City of Brooklyn, 29 Barb., 234; see also Button v. H. R. R. R. Co., 18 N. Y. R., 248.)
    III. The Court erred in charging the Jury, that Buck-man was the owner of the house.
    IV. The Court erred in refusing to charge as requested. (Cheetham v. Hampson, 4 T. R., 318 ; Regina v. Bucknall, 2 Lord Raym., 804; Payne v. Rogers, 2 H. Bl., 350; 5 Abbotts’ Pr., 91; Mayor v. Corlies, 2 Sandf., [S. C.,] 301; Howard v. Doolittle, 3 Duer, 464; Taylor’s Land. and Ten., 95, 96, 101.)
    V. The Court erred in charging, that it does not appear that Lamb at any time refused to allow Ruckman to put the premises in repair.
    VI. Again, it was erroneous to charge that if plaintiff possessed sufficient sight to give her a reasonable assurance that she might travel the streets safely, while they were in a good and proper condition, she would not be guilty of negligence in going abroad unattended. The question of negligence does not depend upon the degree of assurance felt by plaintiff’s mind.
    The Court erred in charging as to the liability for non-repair. There is a distinction between erecting a nuisance, and leasing it to be continued and failing to repair. If Lamb was to repair, as we claim he was by the terms of his lease, then Ruckman was not liable. (See cases above under IVth Point.)
    There is no evidence that the railing was originally deficient or insecure. It may have been the result of an act of violence, and Ruckman should have had notice. (McGinity v. The Mayor, 5 Duer, 674.)

      Ruckman did not erect" the house, nor did he remove the cellar doors, or erect the railing, and, therefore, was not liable. (2 Salk., 460.)
    If the railing was up, it does not follow, because it was loose, that it was not a sufficient protection for the time when Lamb went into possession.
    A landlord is in no case bound to repair, unless by force of an express contract or covenant. (Howard v. Doolittle, 3 Duer, 464; Cleves v. Willoughby, 7 Hill, 83.)
    Much less was he bound to make the railing so permanent that it should continue good for all time, nor is he to be charged with negligence, unless the defect is brought to his knowledge. (McGrinity v. The Mayor, ubi sup.)
    One cannot be liable for the faults of another, unless he is master or principal of such other. (4 Seld., 222; 2 Id., 403; 1 Kern., 432 ; 5 Bosw., 445 ; 5 Duer, 495; 24 Barb., 355; 26 Id., 618.)
    The Court erred in refusing to charge as requested by the counsel for both defendants.
   By the Court—Robertson, J.

The grounds of liability of the two defendants are so different as to require a separate examination. As regards the Corporation of the City of Hew York, it has been fully established in this Court, that they were liable to keep the streets in repair, as a municipal body to whom certain franchises were given by their charter, (Hutson v. Mayor, &c., of N. Y., 5 Sandf., 289,) and therefore responsible for injury caused by their failure to do so. Every objection to their liability was fully urged in the dissenting opinion then given, yet the Court of highest resort, on an appeal from the judgment then rendered, fully confirmed the views then taken, and the learned Judge who delivered the opinion of such Court, in that case, (5 Seld., 163,) after referring to the cases of The Mayor, &c. v. Furze, (3 Hill, 612,) Adsit v. Brady, (4 Hill, 630,) and Rochester White Lead Co. v. City of Rochester, (3 Comst., 564,) even seemed to think that there was no difference between a liability for negligence in constructing and for negligence in not keeping in repair.

A similar principle had been recognized in a previous case, (Hickok v. Trustees of Plattsburg, 16 N. Y. R., 161, note, opinion of Denio, J.,) in the same appellate Court, reversing, upon apparently the same grounds, a decision of the Supreme Court, in that case, (15 Barb., 427.) The corporate powers of the village, in that case, were the same as those of the City of New York. It was followed in the subsequent case of Conrad v. Trustees of Ithaca, (16 N. Y., R., 158,) and the authority of those three cases remains to this day, unshaken by any judicial doubt.

The learned Judge who delivered the opinion in the Court of Appeals in Hutson v. The Mayor, &c., of the City of New York, (ubi sup.,) says: “ There is a class of cases “in which both public officers and public bodies have “ been held not to be liable for an omission to keep' highways in repair. They are cases, however, where the “powers have been so limited to accomplish the object, “ that the Courts have considered their duty resting in too “ much doubt to render them liable; or that the duty was “ not imposed at all, by an omission to give them the “means necessary to accomplish the object.” Such, I think, will be found to be the cases of Peck v. Village of Batavia, (32 Barb., 634,) and Hart v. The City of Brooklyn, (36 Barb., 226,) which apparently relieve the City from liability.

The ground of liability of a municipal corporation for injury to third persons, by their neglect of duty, is elicited, and thoroughly and elaborately discussed and passed upon, in the masterly opinion of Judge Selden, in the case of Weet v. Trustees of Brockport, (16 N. Y. R., 161, in note.) He establishes clearly, that it arises from an actual or supposed contract between the government and individuals or public bodies, evidenced by prescription, grants or chartered powers, under which, by their acceptance and exercise, the latter undertake to discharge corresponding duties, and thus relieve the former from the necessity of providing public officers for the purpose. They, in such case, could only be punished for neglect by indictment, which would furnish no indemnity to the parties injured by their neglect. The right of action of each individual for injury by any neglect, in such case, grows directly out of such contract with the government for the benefit of all, collectively and individually.

A distinction, therefore, is to be observed, where the corporate powers are not sufficiently extensive to imply a contract with the State or the public to perform a particular duty, such as where there is. either á discretion given in regard to their exercise, or no means are furnished for performing them. Thus, in regard to the City of New York, while, in the case of The Mayor, &c. v. Furze, (3 Hill, 612,) it was decided that the Corporation was liable for not keeping in repair sewers and drains once built by them, it was held, in Wilson v. The Mayor, &c., of New York, (1 Denio, 595,) that, before they were constructed, that body had a discretion, and could not be compelled to build them. A somewhat similar principle prevailed in Cole v. Trustees of Medina, (27 Barb., 218,) in the Supreme Court, (Gen. T., 8th District,) where the powers of the trustees of a village to open streets, to compel adjoining owners either to lay sidewalks or pay the expense of them, and to repair such sidewalks when laid, were held to be not ministerial but discretionary and judicial, as they were not bound to lay such walks or do such repairs, and therefore the village itself was not liable for the failure to exercise them. Upon that ground alone is such case distinguishable from Hickok v. Trustees of Plattsburg, (ubi sup.) In the previous case of Morey v. Town of Newfane, (8 Barb., 645,) a town was held not to be responsible for any injury received by a traveler, in consequence of their suffering a highway to be out of repair, because, although commissioners of highways, they had no funds, or means of obtaining them, to defray the expense of repairing. The same principle has been since followed in numerous' cases, including those of Peck v. Village of Batavia and Hart v. City of Brooklyn, already alluded to. In the latter of such cases, the learned Judge who delivered the opinion of the Court, held the City of Brooklyn not to be liable for injuries caused by defects in its sidewalks, simply on account of the failure of its charter to furnish them with means for repairing them; but he added that, in no case would it have been liable, unless previously notified of the existence of such defects. Of course such notification could not involve a formal notice by the party injured, or others, otherwise the city would escape liability altogether; and such notice was not considered indispensable in the case of Peck v. Village of Batavia, (ubi sup.) No case, however, overrules the cases already referred to' of Hickok v. Trustees of Plattsburg and Hutson v. Mayor, &c., of New York, in which the liability was upheld, where franchises are given, and means furnished to exercise them by a public corporation. Although the City of Brooklyn was restricted as to its powers, (Laws of 1834, p. 100, § 26, subd. 16-20,) the Corporation of the City of New York possesses ample powers for repairing sidewalks, as well as carriage ways therein, and are furnished with means for the purpose, or power to obtain them. (Kent’s Charters of the City of New York, pp. 99, 100-115, 235-239, n. 31.)

The liability of the Corporation of the City of New York for neglect in repairing streets was upheld, also, in Wallace v. The Mayor, &c., (2 Hilt., 441; S. C., 9 Abb. Pr., 40,) by the New York Court of Common Pleas, and the Supreme Court in Wilson v. The Same, (1 Denio, 595, 601,) and the general liability of municipal corporations therefor, in Weightman v. Corporation of Washington, (1 Black., U. S. R., 39,) Innes v. Magistrates of Edinburgh and Dargie v. Magistrates of Forfar, (cited in the appendix to Hay on Liability,) and is laid down in Hay on Liability, (pp. 1, 214.)

No distinction exists between sidewalks and carriage ways, in regard to the duty of the Corporation of New York. They have control of the whole of the streets within the city limits, (Montgomerie Charter, §§ 2,10,) and are commissioners of its roads and highways, by various statutes passed at intervals from 1764 to 1813. (Hoffman on Est. & R. of Corporation, &c., of New York, 386, 387.)

The assumption by individuals of the right to make openings or inclose spaces on the "highways as areas, although sanctioned by ordinances of the Corporation, cannot alter the liability of the latter. Every illegal obstruction of the highway is a nuisance, (People v. Laimbeer, 5 Denio, 9,) and cannot be sanctioned by custom. (Davies, 89.) The parts railed in continue to be parts of the highway, until adverse possession has changed the encroachment into a title.

An excavation or obstruction in a highway, even for a temporary purpose, ought to be properly guarded and external notice given of the danger. (Ireland v. Oswego, H. & Sterling Plank R. Co., 13 N. Y. R., 526.) In this case there was no pretense that the excavation was temporary, or made for any other purpose except as a separate permanent entrance to the cellar. It was an opening, therefore, for damage arising from which those who made it, or adopted and continued it, were responsible. Of course the City Corporation were not liable for making or continuing it, but only for allowing it to remain after notice of its existence, as inferred from the lapse of time, and" found by the Jury, and after a reasonable space of time had passed in which to repair it. In this case, both the excavation itself and the absence of all safeguards, had existed long enough to warrant the inference of notice, which the Jury made under the charge of the Court. (Wallace v. The Mayor, &c., 2 Hilt., 440; S. C., 9 Abbotts’ Pr., 40, and 18 How. Pr., 169.)

But the defendants unite in setting up as a defense, that the plaintiff cannot maintain any action, because she is alleged to have participated in the negligence that caused the injury. As, however, the City Corporation was bound to repair and maintain the sidewalk in a safe condition to be waked on, the negligence of the injured party which should absolve them, ought to amount to nearly absolute willfulness. The degree of care of a pedestrian on the sidewalks is the correlative of the duty of the Corporation. If they were bound to keep them in such condition only as would make them safe lor travelers in full possession of all their faculties, and exercising great vigilance and precaution, it was negligence for the plaintiff, whose most important sense for discovering danger was impaired, to walk out unattended and without using a stick to feel her way, or some equivalent protection; on the other hand, if they were bound to make and keep, after notice, the surface of the highway safe to be used by persons of as defective eyesight as the plaintiff’s, she was entitled to rely on the performance of that duty, and was not so negligent as to absolve the defendants from liability. This view, of course, would not affect the question of a reckless disregard of danger.

Before considering, however, the question of the duty of the Corporation, it will be useful, if not necessary, to examine the foundation of the decisions in those cases where persons destitute of forethought, such as infants, lunatics or drunkards, or of the sense of hearing, have been injured by vehicles propelled by horses or steam. (Hartfield v. Roper, 21 Wend., 615; Lehman v. City of Brooklyn, 29 Barb., 234; Willetts v. Buffalo R. R. Co., 14 Id., 585; Johnson v. Hudson R. R. R. Co., 20 N. Y. R., 65.) ,In all those cases the roads were used in a lawful way by the persons having charge of the vehicles that did the injury. They were not bound to know that the persons injured were bereft of their senses; on the contrary, they were entitled to presume that no one entitled to go in the streets would voluntarily put themselves in the way pf a vehicle seen by them, or run into danger. Danger from those using a road is entirely different from that created by the road itself; against the former every one will provide, the latter they have no reason to suspect exists. In this case the excavation was illegal, at least, if unguarded. (13 N. Y. R., 526.) Mo one, whatever his infirmities might be, had, therefore, any reason to fear its existence. The eases cited, therefore, throw no light on the duty of the Corporation and consequent degree of. care to be exercised by the plaintiff. Nor does any case which holds a party liable for not putting up a light, whereby an injury ensues to a traveler, establish the presence of a light to be the only' criterion of proper caution.

The question therefore recurs, what persons are entitled to be protected against pit-falls on the highway, and, of course, what the condition of the faculties of those must be who are warranted in going on the highways unattended. If the rule contended for by the defendants be . correct, not only are the deaf, blind and lame, but individuals subject to fits, nay, the old and infirm and even near sighted persons, all of whom daily traverse our streets, are, deprived of all protection of the municipal guardians of the city, so far as pit-falls on the highway are concerned, even on the sidewalks. Their infirmities, instead of creating a sympathy, put them beyond the pale of the protection of the law.

The law, in regard to municipal obligations, never was intended to embarrass the infirm and maimed in the use of the highway, if they were willing to encounter its ordinary risks, or to increase the latter by adding to the helplessness arising from their misfortunes, the negligence of public bodies charged with the duty of providing safe highways. Those who have good eyesight, and rush upon danger with their eyes open, are justly chargeable with something more than negligence. But the purblind arc entitled to rely upon the absence of all dangers of a kind, of which, or in a place, where the law has said none ought to exist, if those whom it has charged with it do their duty. That rule has. been applied even where parties had their'faculties. (Regina v. Train, 3 Fost. & Finlay’s, 27; Same v. United Kingdom Teleg. Co., Id., 73; Dargie v. Forfar, ubi sup., Hay on Liability, 208, 215.) There are no cases probably to be found which determine, specifically, the rights and duties of the guardians of the highways to those who traverse them with diminished bodily faculties, but as those should be equally under the care of the law, the diligence of such guardians should extend to their protection also.

But it is said that the plaintiff’s negligence in going into the street, consisted in being there unattended, although knowing her defective vision; in other words, she did not use the proper precautions which she might have taken, notwithstanding her infirmity. It seems to be conceded that if she had had an attendant, it would have been sufficient care. But suppose such attendant to have been inattentive or malicious, would the plaintiff escape the imputation of negligence ? In this very case, she had all the benefit of an attendant, for she asked of bystanders if the way was safe, and was informed it was. To require one in her situation, dependent on her own exertions for a livelihood, to remain in doors, and either starve or subsist on charity, unless she could provide herself with an attendant because there were pit-falls on the public highway, would be a mockery. But it is not necessary for the determination of this case, to go so far as to insist that the guardians of highways should leave them safe for the blind. The plaintiff had some power of vision, and it was left to the Jury to say whether it was sufficient to enable her to go with reasonable assurance of safety through the streets, if they were kept, as it was the duty of the Corporation to have kept them. The qualification was more than the defendants were entitled to, and there was no request to instruct the Jury what was the duty of the Corporation. Both parties were willing to assume that the Jury understood it. It is, besides, very clear that it depends entirely upon what the condition is in which the City Corporation are bound to keep the streets, whether the blind or those of defective vision have a reasonable assurance of safety in passing over them.

All the requests of the counsel of the City Corporation for instructions to the Jury, as to their duty in regard to the streets, were, therefore, in any event, properly overruled. They were bound, as has already been shown, to have the highway level and without uncovered and unguarded excavations, even in the daytime, and it was not necessary that the excavation should have been dangerous to persons in full possession of their eyesight. The plaintiff was not entirely blind, and the request as to persons in that condition was immaterial. So, also, the requests for instructions as to the plaintiff’s negligence, were properly refused. She was not bound to use more than ordinary care in passing along the sidewalk, or to have a guide, although unable to determine for herself if • it was free from obstructions or excavations. The Court, in fact, instructed the Jury, that it was the duty of the City Corporation “ to see that such places are maintained “ in a proper and safe condition.” But no request was preferred to explain its meaning, or to give any instructions as to what such condition was. It may have been very rash for the plaintiff to encounter all the risks of the public streets unattended, although necessity drove her to it. But that forms no reason why those public bodies or officers, on- whose faithful discharge of their duties she had a right to rely, should betray their trust, and leave a still greater danger added to those existing on the most safely constructed highways.

The liability of the defendant Ruckman did not depend upon his possession or ownership in fee of the premises at the time of the accident; that may have made the possessors and owners also liable, but did not discharge him ; nor was it necessary that he should have made the excavation originally. On the other hand, as this excavation was on the highway, outside of his premises, he was not bound, simply by reason of bis interest in the latter, to keep it in a safe condition. The excavation, steps, doors and railings connected therewith came into his possession with the premises, and appear to have been used as a mode of access to the lower part of the building, as an appurtenance, and he may, therefore, be considered as having sanctioned and adopted them, as though he had originally caused them to be made. Being, therefore, an invasion of the highway, he was bound absolutely to see that no harm came from it. He leased the premises with such appurtenance, and possibly thereby may have forfeited any right to exclude his tenant afterwards from its enjoyment. The Court of Appeals of this State has held, in a case which went from this Court, that he who disturbs the surface of the highway and makes openings in it is an insurer of all persons who pass over the opening, however carefully protected, (Congreve v. Morgan, 5 Duer, 495; S. C., 18 N. Y. R., 79, 85,) and is not excused by mere proof of due care. This Court held, in the same case, that a person may adopt as his own and become responsible for an excavation made by another. That would, of course, present a question of fact, but as there was evidence tending to show such adoption in this case, the verdict cannot be disturbed, unless some of the requests to charge were improperly overruled or improper instructions given.

The charge was, that it was the duty of the defendant Ruckman to provide proper guards for the opening, to see that it was safely kept and in a safe condition when he parted with the premises. This was clearly proper. He was responsible for the injury to the plaintiff, by the condition in which, the opening was when the accident occurred, if it was unsafe when he parted with the premises, unless some one, without his assent, had rendered it dangerous in the mean time. If, however, once rendered safe after he parted with it, he probably would not be responsible for a subsequent withdrawal of any safeguards, without his consent. But if once in a dangerous condition with his sanction, he was responsible for the continuance of such condition, as wrell as all others who continued it, until it was rendered safe.

Every request for instructions ,as to the exemption of the defendant Buckman from liability, proceeds on erroneous assumptions of the rules of law in regard to it. As matter of law, he might be liable, notwithstanding the existence of a railing at the side of the opening, his being neither owner nor possessor of the premises, nor bound to repair, and his being prevented from repairing. If he was the author of, or otherwise responsible for, the exist-1 enee of the cavity in the sidewalk unguarded, he became an insurer against any damage to any passer-by therefrom. The Court could not, in any event, decide on the sufficiency of a railing, as matter of law. The additional responsibility of others, or the hindrance of the plaintiff by others, would not impair his liability.

Many exceptions to the refusal to charge as requested on the part of the City Corporation, which were not .pressed on the argument, are equally untenable with "the others already noticed, on which they are mainly based.

There being no exceptions to the admission and exclusion of evidence, and no error in the charge or refusals to charge, the exceptions taken must be overruled, and judgment ordered for the plaintiff for the amount of the verdict, with costs.