text:
    Barnet Hill, Appellant, v. James Bartholomew, Respondent.

      Wrongful entry on land, the gist of an action for trespass — variance between the actual use of a right of way and the right reserved — knowledge thereof by a purchaser of the servient estate — notice.
    A wrongful entry upon another’s land is the gist of an action for trespass, and the other averments are in aggravation of the injury done hy the wrongful entry, and relate to the matter of damages.
    Query, whether the knowledge hy a purchaser of the servient estate of the fact that a right of way is used in a manner different from that specified in the recorded grant thereof is sufficient to put him upon inquiry as to whether any subsequent unrecorded grant or agreement between the owners of the land has heen made.
    Appeal by the plaintiff, Barnet Hill, from a judgment of the Supreme Court in favor of the defendant, entered, after a trial by the court without a jury at the Otsego Circuit, in the office of the clerk of the county of Otsego on the 20th day of January, 1892.
    The action was originally brought in a Justice’s Court to recover the damages resulting from a trespass upon real estate. A plea of title was put in and the action then was brought in the Supreme Court. In the complaint it is alleged that the defendant at various times during the months of May and June, 1888, wrongfully went upon the lands and premises of the plaintiff and wrongfully and willfully opened the gates and fences of plaintiff on plaintiff’s premises, and wrongfully and willfully left the gates and fences open, and thereby exposed plaintiff’s crops, and caused plaintiff’s cattle to go out, and that in consequence thereof the plaintiff was put to great trouble and expense in looking after his cattle and in shutting his gates.
    In the answer it is, among other things, alleged that the defendant had a right of way across the plaintiff’s premises, and that all he did was in the exercise of his right, and that he had a right to have the gate open, and all other entries are denied.

      O. F. Matterson and Albert O. Termemt, for the appellant.

      H. H. Harrington, for the respondent.
   Merwin, J.:

The controversy in this case is over the use of a right of way granted by Phineas Persons to the defendant on the 17th of July, 1869. Persons owned lands fronting upon a highway and defendant owned lands in the rear. Thereupon Persons, for a consideration therein named, duly executed and delivered to defendant a deed, by which he conveyed to defendant and to his heirs and assigns forever a right of way in and over a strip of land on the north side of the dwelling house of said Persons in said town of Pittsfield; for the use of the said party of the second part, his heirs and assigns, and his and their servants and tenants in passing from the highway running past the house of said Persons to the house of said Bartholomew, and from said house and premises of said Bartholomew to said highway, said strip of land to be of the width of two rods, and commencing at the gate between the lands of said parties, and running westerly to said highway, passing over the same track 'heretofore used as a passageway by William Hamilton. Said Bartholomew and his heirs and assigns are to forever maintain a gate where the one now is on the line between said parties, and another gate at the other end of said right of way where the same intersects said highway, and keep the same closed, except when passing through same. Said. Bartholomew to have the right to work said right of way so that it may be and remain in good traveling condition.” This instrument was duly recorded and defendant immediately went into the occupancy of the right of way and erected gates at each end thereof, and kept the same closed except when passing through the same, as required by said deed, until June 8,1870. At that date Persons and defendant entered into an agreement in writing signed by both, by which it was provided that the gate at the road should be done aw'ay with as long as James Bartholomew makes and keeps in repair a line fence on the north side of the road that leads to the highway.” This agreement was not sealed, acknowledged or witnessed, or recorded. The gate mentioned in it is the gate mentioned in the deed of 1869, to be maintained where the way intersects the highway. Soon after this agreement was made, the defendant, in pursuance of it, erected a line fence upon the north side of the way and kept and maintained it until the spring of 1888, when it was removed by the plaintiff, and during this time the defendant used the way without a gate at the highway. Persons died in December, 1879, being then the owner of the lands through which the right of way-passed. In 1881 the plaintiff became the owner of such lands by purchase at a partition sale in an action brought by the heirs of Persons for partition. The deed to plaintiff contains the clause subject to the right of way across the same, as deeded by Phineas Persons to James Bartholomew.” Prom this time until the spring of 1888 the use by defendant of Lis right of way without a gate at the highway was with the knowledge and consent of plaintiff. In the spring of 1888 the plaintiff, for his own convenience and without the consent of defendant, removed the fence on the north side of the way and erected a gate- at the highway and closed the same. The defendant thereafter at divers times, as he opened the gate in passing from his farm to the highway and back, did not close it, and these are the same occasions referred to in tlie complaint. The defendant claimed he had the right to have the gate open or done away with under'the agreement of 1870.

As to this agreement the plaintiff claims that as it was not attested or acknowledged it was invalid as to him. (4 R. S. [8th ed.] 2451, § 137.) He was a purchaser from the heirs of Persons. In Strough v. Wilder (119 N. Y. 530), it is said and seems to have been held that the title under an unacknowledged and unattested deed is good as between the parties, and also against the heirs of tire grantor or one claiming under them. The plaintiff also claims that he had no notice of the agreement of 1870 and should not be bound by it, and also that it was revocable. It is found by the court below that the plaintiff when he purchased did not have any notice, knowledge or information of the agreement of 1870 or of any easement except as specified in his deed. He, however, knew that the right of way was in use without any gate at the highway, and that this was a change from the original instrument, the contents of which he is presumed to have known. "Whether the circumstances were such as to put plaintiff on inquiry, or whether the agreement was revocable, are, however, questions not necessary now to determine. There is another question that seems to be fatal to the present action.

This action is in trespass and the gist of it is the alleged wrongful entry. The other averments are in aggravation of the wrongful entry, and relate to the matter of damages. (Whatling v. Nash, 41 Hun, 580, and cases cited.) The action is in tort and is not on contract. No wrongful entry by tlie defendant is shown. He had a right to pass over the right of way, had a right to open the gate. The fault, if any, ujion his part was his omission to close the gate. An act of omission will not make a man a trespasser db initio. (Adams v. Rivers, 11 Barb. 390; Hale v. Clark, 19 Wend. 498.) It is found by the court below that the defendant opened the gate and intentionally and willfully left it open, thereby letting plaintiffs cattle into the street and causing him trouble. It is not, however, found that the defendant at any time opened the gate when not in the exercise of liis right of way under liis deed. He testifies that lie never opened it except when he was exercising his right of passage. He left it open because lie supposed he had a right to have it open.

If the plaintiff is correct in his theory that the agreement of 1870 is, invalid and inoperative as against him, then defendant, under the covenant in the deed of 1869 which inured for the benefit of plaintiff, would be liable for leaving the gate ojien. An action for damages for breach of the covenant would lie, as in the case of Beach v. Crain (2 N. Y. 86). But that is not this action.

It follows that the court below was correct in holding that the defendant did not wrongfully enter or trespass upon the lands of the plaintiff, and that the plaintiff’s complaint was not proven.

Hardin, P. J., and Parker, J., concurred.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Merwin, J.:

license: Public Domain

text:
    Betsey Revoir, Respondent, v. Florence A. Barton and Anna L. Barton, Appellants.

      A pending action to foreclose a prior mortgage is not a bar to cm action to foreclose a subsequent one — evidence properly rejected, in an action of foreclosure.

    The pendency of an action to foreclose a prior mortgage is no bar to an action brought to foreclose a subsequent mortgage, although the holders of such subsequent mortgage are made parties to the foreclosure suit of the first mortgage, and in such suit the answer of the owner of the equity of redemption, among other tilings, denies the validity of the subsequent mortgage and demands that it be canceled of record, and notwithstanding the fact that such answer has been served upon the plaintiff in that action and upon the owner of the subsequent mortgage.
    The owner of certain premises agreed to convey them to another upon his paying a certain sum therefor, assuming a bond and mortgage thereon, and giving hack his bond and a second mortgage thereon, and further agreed that the building thereon, then in the course of erection, should be completed on or before a certain time; such conveyance thereof was given, and the sum provided to be paid was paid, and the one mortgage was assumed and the other was given.

      ITdd, in an action brought for the foreclosure of the mortgage thus given — where the answ'er alleged that the plaintiff had failed to perform her agreement as to the completion of the house, and that, therefore, the hond and mortgage were null and void, but contained no defense by way of offset or counterclaim — that evidence offered for the purpose of showing that the plaintiff had failed to perform her agreement as to the completion of the house, was properly rejected;
    That the partial failure of consideration, resulting from the breach, furnished no ground to disaffirm the executed provisions of the contract; that the remedy for such breach was in the recovery of damages therefor.
    Appeal by tlie defendants, Florence A. Barton and Anna L. Barton, from a judgment of tlie Supreme Court in favor of tbe plaintiff, entered, after a trial at tbe Onondaga Special Term, in tbe office of tlie clerk of tbe county of Onondaga on tbe 6tb day of Marcli, 1893, directing a foreclosure and sale of tbe premises described in tbe complaint. (
    Tbe action was brought for tbe foreclosure of a mortgage dated October 20, 1890, given by tbe defendants to tbe plaintiff to secure tbe payment of tbe sum of $4,250, payable, $1,000 one year from tbe date thereof, and $1,000 each and every year thereafter, until tbe principal was fully paid, with interest from January 1,1891, payable annually on all sums remaining unpaid. It also contained a provision that if any payment remained in arrear for ninety days, the whole principal sum should become due at the option of the mortgagee. There was a bond accompanying the mortgage. The judgment appealed from is the ordinary judgment of foreclosure and sale.

      Costello & Welch, for the appellants.

      Knapp, Kottinghmn cfc Andrews, for the respondent.
   Merwin, J.:

On the 14th of October, 1890, the plaintiff was the owner of the premises described in the complaint, upon which there was a mortgage to the Syracuse Savings Bank for $4,750. At that date, she and the defendants entered into a written agreement by which the plaintiff agreed to sell and convey the said premises to the defendants for the price of $10,000. For payment of this sum, the defendants were to assume the mortgage of $4,750, pay the sum of $1,000 on the delivery of a good and sufficient warranty deed, accompanied by an abstract of title showing the premises free and clear of all incumbrances except the hank mortgage, and for the balance of $4,250, give their bond and mortgage on the premises, payable as follows : $1,000 in one year from the date of the deed, with interest on the whole principal from January 1, 1891, and the balance of the principal in like payments annually thereafter, with interest on all unpaid sums. By the said agreement the plaintiff also agreed that the building now' erected on said premises shall be completed on or before January 1, 1891, or at least the interior of said building shall be suitable for occupancy by said second parties at that time,” and the manner in which the building should be completed was particularly specified, and it was to be done by the plaintiff at her own expense, and as a part of the piice named. The contract also provided that in case either party failed to perform any of the covenants therein contained on their part to be performed, “ the party or parties so failing, shall j>ay on demand to the other party or parties the sum of five hundred dollars ($500), which is hereby fixed and agreed upon as the ascertained and liquidated damage for such failure, being in lieu of performing their part, and shall in no-event be considered a penalty.”

In accordance with, and pursuant to said contract, the deed of said premises was duly delivered by plaintiff to the defendants on October 20, 1890, and concurrent therewith they paid to the plaintiff the sum of $1,000, and executed and delivered the bond and mortgage described in the complaint.

On December 15, 1891, the savings bank commenced in this court an action to foreclose its mortgage, in which action the plaintiff and the defendants were made parties defendant. The complaint in that case, after setting out the bond and mortgage, the conveyance by Mrs. Revoir to the Bartons, and the assumption by them of the bank mortgage and the default in payment, alleged, upon information and belief, that Mrs. Revoir was the owner and holder of a mortgage, then describing the one involved in the present action, and that such mortgage was a subsequent lien to the bank mortgage. The ordinary judgment in foreclosure was demanded. In that action Mrs. Revoir appeared on the 22d of December, 1891, but never answered. On the 25th of March, 1892, the defendants Barton put in separate answers, setting forth that the mortgage of Mrs. Revoir was hot a valid mortgage, but was. void by reason of said Revoir not completing the house according to the contract. They also set up what purported to bé a defense to the bank action, and demanded judgment that the complaint be dismissed and the mortgage of Mrs. Revoir be canceled of record. These answers were served on the attorneys for the plaintiff in that action and on Mrs. Revoir and her attorney in due time. At the time of the service of these answers, the time of Mrs. Revoir to answer in the action had expired and she was in default. The present action was commenced on August 11, 1893, and the bank action was then pending and was also at the time defendants answered in the present case.

It is claimed by the appellants that the pendency of the bank action is a bar to the present action. We think not. The bank had no interest in the question whether the mortgage to Mrs. Revoir was valid. That issue was foreign to the foreclosure and did not at all affect the claim of the bank. The complaint only alleged in regard to' it what appeared from the record and no relief as to it was asked. As said by Judge Monell in the case of Fink v. Allen (36 N. Y. Super. Ct. [4 J. & S.] 350, 359), which was a case somewhat similar to this : “ A defendant cannot be compelled to litigate under such circumstances; and if he refuses to do so, he will not be estopped or debarred of his cause of action or defense.” In Kay v. Whittaker (44 N. Y. 565), it was held that, under the provisions of section 274 of the Oode of Procedure, which, in this respect, does not materially vary from the provisions of the present Code, the relief which defendants may have, - as against each other, must be based upon the facts involved in the litigation of the plaintiff’s claim, and as a part of the adjustment of that claim, and not upon claims with which the plaintiff has nothing to do, and which are properly the subject of an independent litigation between such defendants.” A similar view was taken in Lansing v. Hadsall (26 Hun, 619), and by this court in Mutual Life Ins. Co. v. Cranwell & Others (10 N. Y. Supp. 404).

A further question is raised by appellants as to the effect of nonperformance by plaintiff of the agreement to finish the house.

It appears from the contract between the parties that at the time the contract was made the building had been erected but not completed, and the plaintiff, as a part of the consideration of the sale, agreed to complete it in a specified manner. The time for final completion is by the contract somewhat indefinite. At the trial the defendants as matter of defense offered to show that the house was not completed according to the specifications in the contract. This was held not to be admissible, as no defense by way of offset or counterclaim was alleged. The claim of the appellants is that the right of plaintiff to enforce her bond and mortgage is dependent upon her performance of her agreement to complete the house, and that, therefore, if she failed in that regard, such failure is a bar to her action to foreclose.

In the answer under which this evidence was offered it was in substance alleged that the plaintiff had - failed to perform her agreement as to the completion of the house, and that, therefore, the bond and mortgage were null and void. The damages to defendants by reason of such failure were not claimed or alleged. The only judgment asked for was a dismissal of the complaint.

Is the position of defendants correct that the right of plaintiff to enforce her bond and mortgage is dependent upon her performance of her agreement to complete the house ? No such condition appears in the bond and mortgage or in the contract. There seems to have been an absolute delivery of the deed and the bond and mortgage on the 20th of October, 1890. There was an unconditional acceptance on both sides, and the defendants paid the $1,000, thereby with the bond and mortgage fully performing on their part. The defendants are hardly in a position to say that an act to be done after that is a condition precedent to the thing already performed. (Merchant v. Rawson, Clarke’s Ch. 129 ; De Kay v. Bliss, 120 N. Y. 91.) The defendants still retain the title and do not offer to restore that to the plaintiff. They have no right to rescind the bond and mortgage because of the failure of plaintiff to fully perform her covenant to complete the house. As said in the De Kay case, the partial failure of consideration, resulting from the breach, furnished no ground to disaffirm the executed provisions of the contract; the defendant’s remedy was to recover damages for the non-performance. The De Kay case substantially disposes of the question adversely to defendants. The eases cited by appellants, as to the right of a party to recover a balance upon a building contract, do not, I think, apply here.

It follows that the court did not err in rejecting the offered evidence. There are no other questions that need be particularly considered. No error is apparent that calls for a reversal.

Habdin, P. J., and Paekeb, J., concurred.

Judgment affirmed, with costs.


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    The People of the State of New York ex rel. R. A. Fraser, Respondent, v. The Board of Auditors of the Town of Hamden, Appellant.

      WasTant returnable before a justice of the town where the offense was committed— the prohibition as to fees in chapter 453 of the Laws 1847, inoperative — man-damns — objection that the relator has another legal remedy.

    The right given by chapter 453 of the Laws of 1847 to make a warrant, issued by a justice of the peace of a town in which the offense charged was not committed, returnable before a justice of the town where the offense was committed, was taken away by the provisions of the Code of Criminal Procedure, and the prohibition as to fees for services beyond the issuing of the warrant, contained in such act, became inoperative.

      In. a mandamus proceeding, brought by a justice of the peace of the county of Delaware, residing in the town of Delhi, for the recovery of his fees in certain cases, it appeared that he had issued warrants for the arrest of certain parties who were charged with the'commission of offenses in the town of Hamden in that county; that the parties were arrested, brought before the justice and the proceedings in each case continued before him as a Court of Special Sessions to their determination. He presented his account to the board of auditors of the town of Hamden, but it was rejected, and the board refused to audit and allow the same or any part thereof.
    On appeal from an order directing that a mandamus issue commanding the board of town auditors to audit the account, it was objected that the motion for a mandamus should have been denied because the relator had another legal remedy, in that he had a right to appeal to the board of supervisors, under the provisions of chapter 832 of the Laws of 1866.

      Held, that as the objection had not been taken at the Special Term, it was not a good ground for reversal.

      Semble, that the objection, even if available on appeal, would not be well taken.
    Appeal by tbe defendant, tbe Board of Auditors of tbe town of Hamden, from an order of the Supreme Court made at the Delaware Special Term and entered in tbe office of tbe clerk of the county of Delaware on tbe 10th day of May, 1890, granting a peremptory writ of mandamus to tbe relator against tbe defendant.

      Abrmn G. Grosby, for the appellant.

      JR. A. Fraser, for tbe respondent.
   Merwin, J.:

In the year 1889 the relator was a justice of tbe peace in and for tbe county of Delaware, residing in tbe town of Delhi. In January of that year, upon proper application, be issued warrants, in due form of law, for tbe arrest of certain parties who were charged with tbe commission of offenses in tbe town of Hamden in said county. The parties were arrested and brought before tbe relator, and tbe proceedings in each case were continued before him, as a Court of Special Sessions, to their determination. Tbe claim of tbe relator in question, in this case, is for bis fees in those cases. He presented bis account in due form to tbe board of auditors of tbe town of Hamden, at tlieir annual meeting in November, 1889, but the board rejected it, and refused to audit and allow tbe same, or any part thereof. Tbe present proceeding was commenced about January 1, 1890. There was no dispute at the Special Term about the facts. Nor is the correctness of the bill of plaintiff disputed, assuming that it is a proper one to be allowed.

By section 26 of chapter ISO of the Laws of 1845, as amended by 'chapter 455 of the Laws of 1847, it is provided as follows: And whenever any criminal warrant or process shall be issued by any magistrate residing out óf tire town or city wherein the offense shall have been committed, it shall authorize the officer executing the same to carry the person charged with an offense under this act, before any magistrate resident and being in' the town or city wherein such offense shall have been committed, to be proceeded against according to the provisions of the fifteenth section of this act; but the magistrate issuing such warrant or process shall not lose any jurisdiction over the trial and proceedings against such persons by reason of anything herein contained, nor shall such magistrate be allowed any compensation for any further proceedings in any such case beyond issuing such warrant or process.”

The claim of the appellant is that this statute is still in force, and that under it the relator had no legal claim against the town, at least for any fees for services beyond the issuing of the warrants.

This precise question was fully considered by Justice Parker in case of The People ex rel. Fraser v. Board of Auditors of Bovina (17 N. Y. St. Repr. 872), and it was there held that the authority and requirement, in the act of 1845, to make the warrant returnable before a magistrate of the town where the offense was committed, were in effect repealed by the provisions of the Code of Criminal Procedure, and that with such repeal the prohibition as to fees became inoperative.

For the reasons stated in the opinion in that case, we are inclined to concur in the view that the right given by the act of 1845 to make the warrant returnable before a justice of the town where the offense was committed, was taken away by the provisions of the Code of Criminal Procedure.

The prohibition as to fees applies only to the cases within the scope and under the control of the quoted provision of the act. The phrase “ any such case,” refers only to cases where the power is given to transfer to a justice of the town where the offense was committed. That was an essential element to the prohibition, and that element being absent, tlie main reason and ground for the prohibition fail.

We think that tlie prohibition is not applicable to the present case. It is not necessary to consider the effect of section 165 of “ the Town Law,” as that was not in force when the account of plaintiff accrued.

The appellant further claims that the motion of the relator should have been denied because he had another legal remedy, in that he had a right to appeal to the board of supervisors, under the provisions of chapter 832 of the Laws of 1866.

This objection does not appear to have been taken at the Special Term. If not, it should not be available here. (Town of Mentz v. Cool, 108 N. Y. 504.)

In People ex rel. Millspaugh, etc., v. Town Auditors of Shawangunk (1 How. [N. S.] 224), it was held, in a case like the present one, that the remedy by mandamus was propel’, although the relator had the right to appeal to the board of supervisors. In People ex rel. Lowell, etc., v. Auditors of Westford (53 Barb. 555), a writ of mandamus was allowed, although the statute of 1866 was then in force. So it has been held that as to corporations and ministerial officers, the existence of another and an adequate remedy is no objection to awarding the writ. (People ex rel. Griffin v. Steele, 2 Barb. 554 ; Buck v. Lockport, 6 Lans. 251.) The relator had no remedy by action, and the fact that he might have appealed to another board is not, under the circumstances of this case, a good ground for reversal.

It follows that the order should be affirmed.

Hardin, P. L, concurred; Parker, J., not sitting.

Order affirmed, with ten dollars costs and disbursements.


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    Edwin E. Hall, Appellant, v. The City of Syracuse and Others, Respondents.

      ■Deed by a corporation — when authority to sell is given by stockholders to directorsr

    Where a deed of land is given to a city by a corporation, the city is justified in assuming that the president of the corporation and its board of directors are authorized to act for it in agreeing upon the value of the premises and in making a conveyance thereof to carry out the agreement.
    Where, at an annual meeting of the stockholders of a corporation, held at a time fixed by the by-laws thereof, the subject of selling to a city substantially all of its water rights, easements and privileges was discussed, the possibility of the city taking the same by condemnation proceedings was considered, and the president of the corporation was authorized to confer with the city authorities, see what arrangements could be made, and to report thereon to the board of directors, it is practically the placing by the stockholders of the matter of such sale in the hands of its board of directors, and the city authorities are not called upon to investigate whether all the stockholders were or were not present at such meeting.
    A stockholder of a corporation is presumed to know of its meetings.
    Appeal by the plaintiff, Edwin E. Hall, from a judgment of the Supreme Court in favor of the defendant, rendered at the Onondaga Special Term, and entered in the office of the clerk of said county on the 20th day of January, 1893.

      George Barrow, for the appellant.

      Hancock, Beach <& Devine, for respondents Mottville Paper Co. and others.

      Charles E. Ide and G. G. Baldwin, for respondent City of Syracuse.

      Charles L. Stone and W. A. Beach, for respondent Syracuse Water Board.
   Merwin, J.:

This action is brought by the plaintiff, as a stockholder in the defendant, the Mottville Paper Company, Limited, to set aside a deed from that company to the city of Syracuse, dated February 23, 1891, upon the ground that, as against a stockholder who did not assent to it, it was void-for want of power in tlie board of directors to execute it or authorize its execution.

The paper company was organized in 1886 under the provisions of chapter 611 of the Laws of 1875, for the purpose of manufacturing paper at Mottville, N. Y. Prior to the organization, the parties interested therein, and who afterwards became stockholders, contemplated the purchase of certain real estate and buildings thereon, and water rights and privileges appurtenant thereto, situated on the outlet of Skaneateles lake. After the incorporation, such property was purchased, and improvements were made thereon, and the business ni manufacturing paper was there entered upon and continued down to the time of the trial, the water of the outlet being used for the purpose of washing the material and reducing the same to pulp, and in part for the propelling of machinery, the balance of the machinery being propelled by steam power.

By chapter 291 of the Laws of 1889, the Syracuse Water Board was created, and power was conferred upon it to acquire by purchase or condemnation, for and in the name of the city of Syracuse, any property necessary for the acquisition, construction, maintenance, control and operation of the system of water works contemplated by the act. By section 18 of the act, as amended in 1890 (Chap. 314), it was authorized, under certain conditions, to take water from the Skaneateles lake. One of the provisions of this section is, that “ before any water shall be taken from Skaneateles lake, under the provisions of this act, the city of Syracuse shall acquire or extinguish all water power rights upon the outlet of said lake, to be affected by the proposed-storage of water.” It was also provided that the powers granted to the water board to acquire property under the act, and to make payment therefor, shall be deemed to include full power and authority to do and perform all acts and things necessary or proper to enable the city to obtain water from the lake under the provisions of the amended section. The water power rights of the llottville Paper Company were among those affected by the proposed storage of water. Substantially all its water rights, easements and privileges were derived from water coming from the lake through the outlet. Thereupon, the water board, acting under the authority given by the acts referred to, prior to January 5, 1891, demanded of the paper company the sale by it of such rights and privileges, offering to pay the value to be agreed upon, and in case of refusal by the company to sell, threatened to take proceedings under the statute for the condemnation thereof.

The capital stock of the paper company was $30,000, of which the plaintiff has, since January, 1888, been the owner of $5,000, and at one time was secretary and treasurer of the company. He has, however, since January, 1890, been at variance with the management of the corporation, and attended no meetings of the stockholders or directors. The annual meeting of the stockholders is fixed by the by-laws of the company for the first Monday of January, at the office of the company at Mottville. At the annual meeting in January, 1891, stockholders owning or representing stock to the amount of $25,000 were present. The plaintiff was not there. At this meeting the subject of selling the company’s water rights to the city of Syracuse, and the possibility of the city taking the property by condemnation, were considered, and the president of the corporation was authorized to confer with the city authorities, and see what arrangement could be made, and report thereon to the board of directors. Under this authority, negotiation was had by the president, and he reported at a subsequent meeting of the directors that the city offered to pay $22,500 in cash, as damages, and for the purchase of the water rights. This offer was accepted by the directors, and the president authorized to execute the necessary conveyances, and receive the money. The deed in question was accordingly executed and delivered, 'and the money paid. The deed purports to convey all the right, title and interest held or claimed by the said first parties in and to the water power, the right or privilege to use the water of Skaneateles lake outlet, and all interest or easements held or claimed therein by them, wherever situate, or from whatever source derived; and especially all the right to use the water of said outlet, and all the easements or water privileges connected with or belonging to the following described premises,” describing the real estate of the company; said party of the second part also stipulates and agrees that saicf city of Syracuse will not, at any time, make any charge or rental to said first party for the use by them of any waters flowing down said outlet. This stipulation or agreement shall not, however, be construed as a license or grant of any rights with relation to said-waters or the use thereof.”

The money received upon the sale has been used by the paper company in the payment of its debts or in the business of the company, and prior to the commencement of this action the plaintiff did not restore, or offer to restore, to the city any part of it.

It is found by the Special Term, upon sufficient evidence, that the price paid was all that the rights conveyed were worth; that in and about the prosecution of the business, the paper company can obtain more reliable power to operate its paper mill and machinery from steam than from water, and that sufficient water for the purpose of making paper can be obtained from sources other than from water flowing from the lake into the outlet; that during the period of seven or eight months of the year, water will flow down the outlet to the Erie canal, for the use of the State; that all the business of. the company can be well conducted without the use of water from Skaneat-eles lake flowing through the outlet; that in making the sale and conveyance the defendants acted in good faith and for the best interest of all parties concerned, as they believed, and no material injury has resulted therefrom to said company, or to any of its stockholders. It appears that the directors who authorized the deed owned or represented all the stock except what was owned by the plaintiff.

We fail to see that the plaintiff, has any good ground for equitable relief. The city and those acting in its behalf, had a right to believe that the *president of the company and its board of directors had a right to act for it in agreeing upon the value, and in making a conveyance to carry out the agreement. Practically at the stockholders’ meeting, the matter was placed by them in the hands of the board of directors. The city authorities were not called on to investigate whether all the stockholders were present. The plaintiff is presumed to have known of the meeting; he does not deny that he knew of it, but he chose to be absent.

If, as was apparently the case under the statutes referred to, the city had a right to acquire the property in question whether the paper company was willing to sell or not, the question of power to sell became unimportant to the stockholders. The only open question was the one of price, and upon that subject, especially after the action of the annual meeting, the board of directors legally represented the corporation. It was their duty to obtain the highest price they could. In their judgment this was accomplished by agreement rather than by allowing proceedings for condemnation. Ve find no good reason for interfering with their agreement and consequent conveyance.

It follows that the judgment should be affirmed.

Hardin, P. J., and Parker, J., concurred.

Judgment affirmed, with one bill of costs to defendants.


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    Catharine Tobin, Respondent, v. James B. Sykes and Another, Appellants.

      label — jwtifitt’Mon not as broad as the ehwrge — exceptions not well taken— evidence pi'operly excluded — amount of verdict.

    On the trial of an action brought to recover damages for an alleged libelous article, referring to the plaintiff as “ a miserable drunken brute of a mother,” there was no evidence that, prior to the occasion referred to in the article, the plaintiff had been drunk or intoxicated, or that she had been drinking upon the day referred to. One witness testified that she appeared to be intoxicated, but on cross-examination, testified that he had never seen her intoxicated. There was evidence that she was very excited, did not act rationally, had been punishing one of her children, and that the neighbors interfered.
    The court instructed the jury that the evidence was not sufficient to justify their finding that the plaintiff was a drunken'woman.

      Held, that the court did not err in holding that no justification was shown as broad as the charge.
    The plaintiff’s counsel asked the court to charge that if the defendants failed to establish the justification, the jury must determine whether or not it was set up in good faith, and that if it was set up in bad faith they might take that into consideration in determining upon their verdict, to which the court replied . “ Yes, that is the ruling of the court, correctly stated,” and the defendants’ counsel excepted.

      Held, that such exception was not well taken.
    The defendants objected to the plaintiff’s counsel reading the answer upon his summing up, on the ground that it had not been offered or received in evidence, and was incompetent and irrelevant and immaterial. The objection was overruled, and an exception was taken by the defendants.

      Held, that the exception was not well taken ’
    During the summing up| the plaintiff’s counsel, under the objection of the defendant, read from the Bible that “ No drunkard shall inherit the kingdom of heaven.”

      Held, that there was no ground for reversal on such ruling, as the counsel had a right to comment, in a reasonable manner, upon the character of the charge made in the libel.
    Also, that evidence of the condition of the plaintifE sometime after the publication was properly excluded, and that it was competent for the plaintiff to testify to the transaction upon the date specially referred to in the article, and as to the circumstances leading direetty to it.
    The jury rendered a verdict for the plaintiff of §400.

      Held, that upon the evidence, there was no sufficient reason for interference therewith by an appellate court.
    Appeal by the defendants, James B. Sykes and Harry B. Sykes, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oneida on the 15th day of January, 1892, upon the verdict of a jury for $400, after a trial at the Oneida Circuit, with notice of an intention to bring up for review on such appeal an order denying defendant’s motion for a new trial made upon the minutes of the court.
    The action was brought to recover the damages occasioned to the plaintiff by the publication of an allaged libel by the defendants in a newspaper called the Clinton Oourier.

    The article published did not name the plaintifE, but she claimed that in fact it referred to her. It was as follows: “ A miserable, drunken brute of a mother on Utica street sends her children for beer daily, and cruelly beats them. Last evening their cries brought out the neighbors, and one of them threatened to arrest her if the beating was repeated.” The defendants in their answer set up a full justification, and also matter in mitigation.
    Upon the trial of the action, during the summing up by the plaintiff’s attorney, he offered to read to the jury from the answer, to which the defendants’ counsel objected on the ground that the answer had not been offered or received in evidence, and was incompetent, and irrelevant and immaterial. The exception was overruled, and an exception was taken by defendants.
    Defendants’ counsel also objected to plaintiff’s counsel reading from the Bible, “No drunkard shall inherit the kingdom of heaven,” which objection was also overruled, and an exception was •taken to such ruling.
    The plaintiff’s attorney requested the court to charge that if the defendants failed to establish a justification of the libel set up in the answer, the jury must determine whether or not it was set up in good faith or bad faith, and if they found that it was set up in bad faith that they could take that into consideration in establishing the damages. The court replied : “ Yes, that is the rule, correctly stated,” to which the defendants’ counsel excepted.
    The court also, in effect, charged the jury that they could not find from the evidence that the plaintiff was a drunken woman.
    Z. M. Maa'tvn, and D. P. Seo/rle, for the appellants.
    IF". J. Shields and Charles P. Ccurruth, for the respondent.
   Merwin, J.:

The main question on this appeal is whether the court erred in holding that the evidence was not sufficient to authorize the jury to find that the defendants had established a justification for the use of the word drunken,” in the manner in which it was used in the article published. The plaintiff was not named, in the article, but the jury, upon sufficient evidence, found that the article was published 'concerning her. By the terms of the article, the word drunken ” did not simply refer to the condition of the party on a particular occasion, but was used generally. It substantially charged that the party was habitually drunk. There was no evidence that, prior to the special occasion referred to in the article, the plaintiff had been drunk or intoxicated. Nor w'as there any evidence that she had been drinking on the day named. One witness testifies that she appeared to be intoxicated, but on his cross-examination he testified he had never seen her intoxicated. There is evidence that she was very excited, did not act rational; she had been punishing one of her children and the neighbors were interfering. We think the court did not err in holding that no justification was shown as broad as the charge.

At the close of the charge the plaintiff’s counsel asked the court to charge that if the defendants fail to establish a justification, the jury must determine whether or not it was set up in good faith, and if they find it was set up in bad faith they can take 'that into consideration in establishing the damages. To this the court replied, “ Yes, that is the rule, correctly stated,” and the defendants excepted. This exception is not well taken. (Holmes v. Jones, 121 N. Y. 461.) The case cited also disposes of the exception of the defendants to tbe reading from the answer to the jury by plaintiff’s counsel in summing up. It does not appear that any improper use was made of the answer. The record also shows as follows : “ Defendant objected to plaintiff’s counsel reading from the Bible, ‘ no drunkard shall inherit the kingdom of heaven.’ Overruled; exception.” ¥e fail to see any ground for reversal in this ruling. The counsel has a right to comment in a reasonable manner upon the character of the charge made in the libel.

The evidence of the condition of plaintiff sometime after the publication was properly excluded. It was competent for the plaintiff to testify to the transaction upon the date specially referred to in the article and as to the circumstances leading directly to it. Perhaps, strictly speaking, the evidence was not in order at the time it was given, but no objection on this ground was taken. We discover no error in regard to it prejudicial to the defendants.

The defendants claim the damages are excessive. This depends upon the view that is taken of the evidence. The jury apparently took a view favorable to the plaintiff. We have no right to say that that was inrproper. It was the province of the jury to fix the damages, and upon the evidence, as they had a right to look at it, no sufficient reason is apparent for us to interfere.

These considerations lead to an affirmance of the judgment.

HabdiN, P. J., and Paekee, J., concurred.

Judgment and order affirmed, with costs.


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    William Georgeson, Respondent, v. James S. Caffrey, as Treasurer of the Empire Mutual Union of Syracuse, N. Y., Appellant.

      An order of substitution not appealed from when no motion was made to set it aside, is not reviewdble on appeal — sufjieient proof of incorporation — invalid by reason of the engagement in an una/ufhoi'ized business — members of an unincorporated association personally liable for a claim.

    Where no appeal has been taken from an order substituting a person as the defendant in an action, and such order is not mentioned in the notice of appeal, and no motion is made by him to set it aside, he is not in a position to review the same.

      Proof of the filing and recording of a certificate of incorporation, in the office of the county clerk and of user, where no evidence is given that the certificate was not filed in the office of the Secretary of State, is ordinarily sufficient evidence of incorporation.
    Query, whether a person can, for the purpose of throwing a personal liability upon the members of a company, of which he is himself a member, claim that the incorporation, or attempted incorporation, of the company, is invalid by reason of the circumstance that he and his associates engaged in a business that the act did not allow.
    To entitle a plaintiff to the benefit of section 1919 of the Code, he must allege and prove that all the members of an association were liable, either jointly or severally, to pay his claim.
    An attempt was made to form a corporation, under chapter 267 of the Laws of 1875, for the purpose, as stated in the certificate, of gathering together, in social and friendly union, persons of good character and standing, of assisting the members of said society in obtaining help, aid and employment both outside and among themselves, of joining together the members in mutual efforts to assist each other in economic and benevolent purposes and enterprises, and of providing regular relief, aid and benevolence among the members, and of promoting, in every manner possible, the interest of the members among themselves. It was provided that any person might become a member by making application and paying the admission fee and a certain sum per month on each certificate held by him during his continuance of membership.
    The trustees were authorized to employ a manager and to pay him a reasonable salary out of a particular fund, and employed a member of the association as such manager.
    In an action brought by such manager to recover his salary,

      Held, assuming that the association so formed was an unincorporated association having seven or more members, and that the plaintiff was in a position to take advantage of that fact, that the evidence did not authorize the finding that all the members of the association were personally liable to the plaintiff, and that a motion for a nonsuit should have been granted.
    Appeal by the defendant, James S. OafErey, as treasurer of tbe Empire Mutual Union of Syracuse, from a judgment entered in the office of the clerk of Onondaga county on the 29th of November, 1892, upon a verdict rendered at the Onondaga Circuit on the 21st of November, 1892, for $749.42, in favor of the plaintiff, with notice of an intention to bring up for review upon such appeal the order denying a motion for a new trial, errors in the judgment, and a.ll other questions of irregularity, law or fact, disclosed by the record.
    The action, when commenced on the 5th of January, 1892, was against Frederick H. Ebeling, as treasurer of the Empire Mutual Union. In the complaint it was alleged that said union was an unincorporated association, composed of seven or more persons, and that Ebeling was at the time of the commencement of the action the treasurer of the association; that the plaintiff was its general manager from the 2d day of December, 1890, to the 20th of November, 1891, at an agreed compensation of twenty-five dollars per week, and that at the commencement of the action there was due and unpaid to the plaintiff on account of such services, the sum of $683.37, with interest from November 20, 1891. The answer contains a general denial.
    Upon the trial it appeared that on the 26th of September, 1890, the plaintiff and four others, duly executed and acknowledged a certificate purporting to be a certificate of incorporation of the Empire Mutual Union of Syracuse, N. Y. This certificate stated a desire to form a society for social, mutual benefit, and benevolent purposes, pursuant to chapter 267 of the Laws of 1875, entitled “ An act for the incorporation of societies or clubs for certain lawful purposes,” and the acts amendatory thereof, and that the particular business and objects of the society were as follows: “ To gather together in social and friendly union persons of good character and standing; to assist the members of said society in obtaining help, aid and employment, both outside and among themselves ; to join together the members in mutual efforts to assist each other in economic and benevolent purposes and enterprises ; to provide regular relief, aid and benevolence among the members; and to promote in every manner possible the interests of the members among themselves.” The number of the trustees was five, and as named for the first year they were the same persons who executed the certificate. This certificate was approved by a justice of the Supreme Court, and was, on the 26th of September, 1890, filed and recorded in the office of the clerk of Onondaga county, that being the county where the office of the society was situated. It was not shown whether or not the certificate was ever filed in the office of the Secretaiy of State. The court below assumed that it was not. By-laws were adopted which stated that the purpose of the union “is to join together the members in mutual union and encouragement, to enable them to gather together in one sum which can be used to some advantage the little savings which members are able to contribute.” It was provided that any person might become a member by making application and paying' the admission fee, and one dollar and twenty-five cents per month thereafter on each certificate held by him or her during the continuance of membership. The admission or membership fee was two dollars and fifty cents for one certificate, and one dollar and twenty-five cents additional for each additional certificate, no member to have more than four. The form or contents of this certificate do not appear in the case. The manner of payment of the monthly dues was provided for and in case of non-payment the certificate lapsed and became void and all moneys paid forfeited to the union. A general fund and a benefit fund were provided for, the general fund to consist “ of the admission fee and other fees and fines and first month’s dues, twenty per cent of all monthly dues and ten per cent of benefit fund for collection; ” the benefit fund to consist of “ one dollar per month for each certificate, less ten per cent commission for collections, and be used exclusively for members on their certificates.” It was provided that “ on the fifth day of each month all moneys deposited in the benefit fund shall be applied to the payment of maturing certificates after deducting $50, less the monthly dues previously paid, and readmission fees.” There was also a provision that “ the trustees shall appoint one as general manager, who may be removed for cause, at a salary consistent with his duties, who shall have general supervision of the business of the union.”
    At a meeting of the board of trustees on December I, 1890, at which the plaintiff and four others were present, a resolution was adopted that the plaintiff “ be made general manager of the Empire Mutual Union, at a salary of twenty-five dollars a, week.” From this .time to November 19, 1891, the plaintiff continued to be manager, and this action is for the balance due him for such services. It was showm that at the time of 'the commencement of this action there were about 600 members of the association. At the close of the trial the defendant moved for a nonsuit upon the grounds, among others, that there was a de facto corporation, and it could not be treated as an association; that the plaintiff being a promoter of the company, its president, and actively interested and engaged in its organization, is estopped from denying that it is a corporation, and that it bad not been proved tliat the association was an unincorporated one,, consisting of seven or more individuals, as required by section 1919 of the Code. This motion was denied, and defendant excepted.
    In the course of the trial it appeared that Ebeling had ceased to be treasurer about the time of the commencement of the suit, and that James S. Caffrey had been elected in his place, and was treasurer at the time of the trial. At the close of the evidence the court directed the entry of an order substituting Caffrey as treasurer, etc., as defendant in place of Ebeling. To this the defendant excepted.

      Geo. H. Sears, for the appellant.

      D. F. McLennan, for the respondent.
   Merwin, J.:

The appellant claims that the order substituting him as defendant was erroneous. No appeal, however, is taken from the order itself; it is not specified in the notice of appeal, and no motion appears to have been made by him to set it aside. He is not, therefore, in a position to review it.

There is no evidence in the case that the certificate of incorporation was not filed in the office of the Secretary of State. Proof of filing and recording in the county clerk’s office and of user would ordinarily be sufficient proof of incorporation without proof of filing in the office of the Secretary of State. (Leonardsville Bank v. Willard, 25 N. Y. 574.) If the plaintiff sought to show that the certificate never became effectual, it was for him to show the omission which produced that result. The court, I think, erred in presuming it was not filed as required by law. And it looks to me very doubtful whether the plaintiff can, for the purpose of throwing a personal liability upon members, himself claim that the incorporation or attempted incorporation is invalid by reason of the circumstance that he and his associates engaged in a business that the act did not allow. (See Foster v. Moulton, 35 Minn. 458.)

Assuming, however, that the Empire Mutual Union was an unincorporated association, having seven or more members, and that the plaintiff is in a position to take advantage of the fact, it does not follow from that fact alone that the plaintiff is entitled to the benefit of the provisions of section 1919 of the Code. According to the ruling in McCabe v. Goodfellow (133 N. Y. 89), the plaintiff, to maintain the action, must allege and prove, and it must be found, that all the members of the association were liable, either jointly or severally, to pay his claim. Does the evidence in this case authorize the finding that all of the members are personally liable to the plaintiff ? The plaintiff was himself one of the members, and his associates did not become liable for his claim unless they in effect agreed to become so. There is no evidence of any such agreement on their part. The members, besides their admission fees, were required to pay certain monthly dues. Nothing else was required of them, and if they did not pay as required, they ceased to be members. True, the trustees were, by the by-laws, authorized to employ a manager at a reasonable salary, but the payment of this and the other expenses of the society, was provided for out of a fund raised in a particular way, and called the general fund. Concerning this, the plaintiff testified: The general fund was the expense fund ; there was no separate expense fund, but the expenses were paid out of the general fund * * * officers were paid out of the general fund; that includes me as general manager. The general fund was created in this way: admission fees and fines, and first month’s dues, twenty per cent of all monthly dues, and ten per cent of benefit fund for collection.” It is very clear that the trustees were not authorized to pledge the individual credit of the members, nor did the plaintiff have the right to expect any such thing, and there is no evidence that he did expect any such thing. He and his associates had formed, or attempted to form, a corporation, and the inference is that on the 1st December, 1890, when plaintiff was appointed manager, they supposed that a corporation existed.

As between the members, no partnership existed, for there was no agreement, expressed or implied, to that effect. (See Lafond v. Deems, 81 N. Y. 514.) The failure to incorporate did not make the members-partners. (Merchants’ Nat. Bank v. Pendleton, 29 N. Y. St. Repr. 891, and cases cited; affd. sub nom., Merchants' Nat. Bank v. Kirby, 129 N. Y. 662.) There was no capital or stock, and no basis for saying that it was a joint-stock company. It was apparently a mutual aid association, with a fluctuating membership, liable to be diminished by lapsing, and increased by new members. The case shows that when plaintiff was appointed manager, there were about 200 members, and at the commencement of the suit, about 600.

If these views are correct, the plaintiff failed to make a case within the rule laid down in the McCabe case, and the motion for nonsuit should, therefore, have been granted.

Hardif, P. J., and Parker, J., concurred.

Judgment and order denying motion for a new trial reversed on the exceptions, and a new trial ordered, with costs to abide the event.


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    Lucretia M. Whitaker, Respondent, v. Almon T. Burrows, Appellant.

      Agreement mid under the Statute of Frauds — accountability of a party receiving benefits thereunder — when tender and remedy of specific performance unnecessary — acts of ownership on the premises — evidence.

    A party who refused to go on with an agreement which is void under the Statute of Frauds, after having derived a benefit from a part performance thereof, must pay for what he has received under it, the other party not being in default.
    One Whitaker, being about to purchase real estate, was unable to raise by $1,500 the purchase price thereof, and her brother purchased the property in his name, she furnishing the entire consideration except the $1,500. There was evidence tending to show that the verbal agreement between them was that the brother should furnish the §1,500, purchase the property in his own name, and should allow her to remain in the premises during his life, she to pay him the interest on the §1,500 so advanced by him, and that he should convey the property to her when he received the SI,500 and interest; but after thus acquiring the title the brother demanded his money, and on the next day sold the property.
    In an action brought by Whitaker against her brother, in whose name the title to the real estate was taken, to recover the amount of money advanced by her towards the consideration of such premises,

      Held, that the defendant’s only interest in the premises was the amount of the sum which he had advanced towards the purchase price thereof, with interest thereon;
    That it was not necessary, under the circumstances, for the plaintiff to make a tender, nor to resork to the remedy of specific performance against the purchasers from the defendant.
    That a contract, made between the plaintiff and the persons from whom the defendant received the deed of such property, was properly admitted in evidence where it was known to the defendant, had been read over to him, related to the transaction resulting in such deed -to him, and no question was raised as to its due execution.
    One of the issues under the pleadings was as to whether the agreement between the plaintiff and her brother continued in force until the conveyance of the property by him.

      Held, that it was proper to receive proof of plaintiff’s acts as owner of the property.
    Upon the trial of the action the defendant put in evidence a lease, given to one of the plaintiff’s witnesses by the purchasers from the defendant of such property, after its purchase.

      Held, that it was not improper to allow such witness to he asked, by way of explanation, how he came to take -* the lease or what were his reasons for taking it.
    Appeal by tbe defendant, Almon T. Burrows, from a judgment of tbe Supreme Court in favor of tbe plaintiff, entered in tbe office of the clerk of tbe county of Delaware on tbe 23d day of July, 1890, upon tbe report of a referee.
    The action was commenced about August 11, 1888. In tbe complaint .it is alleged that the defendant, on the 14th of August, 1882, purchased and took from Charles N. Putnam and Ben j amin Hathaway, a conveyance of certain real estate, describing it; that tbe purchase was made and conveyance taken by defendant at tbe request and for tbe benefit of plaintiff; that of tbe purchase price tbe plaintiff paid about tbe sum of $840, and tbe defendant paid tbe sum of $1,500 that it was expressly agreed by and between tbe defendant and plaintiff that upon tbe payment by plaintiff to defendant of tbe balance of the purchase price, being $1,500 advanced and paid by defendant, be would convey tbe premises to her by a good and sufficient warranty deed; that on or about August 14,1883, tbe plaintiff paid defendant to apply thereon, tbe sum of ninety dollars ; that in or about July, 1886, tbe defendant, neglecting and refusing to perform said contract upon bis part, conveyed tbe premises to other parties for tbe consideration of $2,600, and ejected, or caused plaintiff to be ejected from tbe premises, and although requested so to do, neglects or refuses to repay to plaintiff the moneys so paid and advanced by her, and bad and received by him as aforesaid; that said agreement between plaintiff and defendant was in full force and effect at tbe time of such conveyance by defendant, and tbe plaintiff is still willing and ready to perform on her part, but that the defendant lias thereby put it out of his power to perforin on his part. Judgment is demanded for $930, and interest. The answer admits the conveyance to defendant, and denies all the rest of the complaint.

      Alex. Cv/mmiings, for the appellant.

      Moore c& Scott, for the respondent.
   Merwin, J.:

The facts of this case, as authorized to be found from the evidence, are substantially as follows:

On the 14th of August, 1882, the defendant received from Charles M. Putnam and Benjamin Hathaway, 2d, a conveyance of certain real estate, upon which the plaintiff resided with a Mr. Rood. Mrs. Rood was a sister of plaintiff, and the defendant is their brother. Putnam and Hathaway acquired their title on foreclosure of a mortgage, Rood being the owner of the equity of redemption. The consideration of the deed to defendant was made up as follows : $1,500 advanced by the defendant, $300 advanced by the plaintiff, and the balance was accounts to the amount of $600 to $100, which Rood had, or claimed to have, against Putnam and Hathaway, and which they were willing to allow on the purchase price. These accounts Rood had previously transferred to plaintiff. The negotiations for the purchase were between Putnam and Hathaway, and the plaintiff or her agent. Putnam and Hathaway were willing to sell the property to the plaintiff, and the amount of the consideration was agreed on. After applying the accounts and the $300 which plaintiff had, she needed $1,500 in order to complete the purchase. She had made an arrangement with one Wheeler to advance this $1,500, but this arrangement fell through, and then the defendant was applied to. He evidently knew the situation that plaintiff was in, and the character of the proposed arrangement with Putnam and Hathaway, and that plaintiff had not sufficient means of her own to carry it out. He thereupon agreed verbally with her that ' he would advance the necessary $1,500, take the title to the premises, and convey the same to the plaintiff or any other person she wished, when she paid him, or he received the $1,500 and interest. In pursuance of this arrangement, the deed was given to the defendant, and tlie consideration paid as above stated. Tlie time of payment of tlie $1,500 was left indefinite, tliere being evidence tliat defendant said to plaintiff tliat slie should not be disturbed as long as lie lived. The plaintiff remained in possession, and managed tlie property as owner. In 1888 she paid the defendant ninety dollars, being one year’s interest on the $1,500. On the 24th of June, 1885, the defendant contracted in writing to sell and convey the premises to other parties for the price of $2,600, and he subsequently conveyed to them tlie premises, and received the consideration. The plaintiff refused to consent to this sale, or leave the premises, and she remained thereon till the summer of 1886, when she was dispossessed by the parties to whom the defendant sold. The defendant, before making the sale, did not give the plaintiff a reasonable opportunity to raise the money. According to her evidence, he demanded the money one day, and sold tlie property the next. lie had previously induced her to believe that the money might remain as it ivas. The plaintiff, therefore, was not in default when the defendant made the sale, and placed it out of his power to convey a good title. lie knew that the plaintiff, or those she represented, paid all the original consideration except the $1,500 he advanced; that plaintiff paid the $300, and that accounts rvere allowed as part of the price. After he made the sale, he stated that morally, he ought to pay the plaintiff all that he received over and above tlie $1,500 and interest, but denied his legal liability to do so. After a demand, this action Avas brought.

This being the situation upon the evidence, it would seem to be a case for the application of the familiar doctrine that a party who refuses to go on with an agreement, void by tlie Statute of Frauds, after having derived a benefit by a part performance, must pay for what he has received, the other party not being in default. (Lockwood v. Barnes, 3 Hill, 128 ; Erben v. Lorillard, 19 N. Y. 304 ; Day v. N. Y. C. R. R. Co., 51 id. 590.) Under the arrangement between plaintiff and defendant, and relying on defendant’s promise, the plaintiff made the payments Avhich she did to Putnam and Hathaway, and the defendant in receiving the title, received the benefit of them as effectually as if they had been made to him and then he had passed them over to the grantors. The value was in the land, and the defendant had the title. The price he obtained when he sold was $2,600, while the price to Putnam and Hathaway did not exceed $2,500. The decision of the referee treats the interest of the defendant in the property as the amount of his advance and interest, and the plaintiff’s interest as $830, which is, in fact, the balance of $2,600, and does not exceed the payments of plaintiff. Interest is allowed from the time of, the demand and the commencement of the suit.

After the defendant sold the property, it was not necessary for the plaintiff to make a tender, nor to resort to a remedy of specific performance against the purchasers from defendant. (Smith v. Rogers, 42 Hun, 110 ; affd., 118 N. Y. 675.)

So, that upon the merits, the defendant has no good ground of complaint.

The defendant further claims that the referee erred to the defendant’s disadvantage in several rulings upon evidence. We find, however, nothing that calls for a reversal. The contract called Exhibit A, between plaintiff and Putnam and Hathaway, was properly received in evidence. It was known to the defendant, he heard it read over, and it related to the transaction resulting in the deed to defendant. At the trial when it was admitted, no question was raised as to its execution. It was proper to receive the proof of the repairs done by the plaintiff to the dam upon the premises, after her agreement with defendant, and before he sold. One of the issues under the pleadings, was whether the agreement between them continued in force until the conveyance by defendant, and her acts as owner upon the property were competent to be proved upon this subject. The defendant gave in evidence a lease to Mr. Rood from the purchasers from defendant after their purchase; for what purpose does not appear. It reflected upon Rood’s situation; he was a witness for plaintiff. It was not improper to allow Rood to be asked, by way of explanation, how he came to take the lease, or what were his reasons for taking it. It is not necessary to refer to the other exceptions.

We think that substantial justice is accomplished by the judgment, and that it should be affirmed.

IÍARDiN, P. J., and Pabkek., J., concurred.

Judgment affirmed, with costs.


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    George Merris, Appellant, v. Charles Hunt, Respondent.

      Action for breach of warranty of a horse — evidence of the cost of the use of another horse, improperly admitted, does not justify a reversal.

    In an action brought to recover damages for a breach of warranty in the sale of a horse, the plaintiff recovered a judgment in the Justice’s Court for thirty-eight dollars and seventy-five cents, which the County Court reversed on the ground that the evidence of the plaintiff as to the cost of the use of another horse to favor the one in question was improperly received on the question of damages. Ho claim was made by the plaintiff for any special damages of this character, nor was the objection taken that this evidence was not proper on the question of damages.

      Held, that it was a fair inference from the whole case that such evidence was not offered or received on the question of damages, but by way of explanation of statements that had been drawn out on the defendant’s cross-examination of the plaintiff, and that, in the light of the other evidence in the case, it was not of sufficient importance to call for a reversal.
    Appeal bj tlie plaintiff, George Merris, from a judgment of the County Court of Onondaga county in favor of the defendant, entered in tlie office of tlie clerk of tlie county of Onondaga on the 31st day of December, 1892, reversing a judgment of a justice of the peace in favor of the plaintiff for thirty-eight dollars and seventy-five cents and costs.

      If. If. Kiley, for the appellant.

      Waters, McLennam, c& Waters, for the respondent.
   Merwin, J.:

The action in this case was to recover damages for breach of warranty in sale of a horse. The plaintiff recovered in the Justice’s Court to the extent of thirty-eight dollars and seventy-five cents damages, but the County Court reversed the judgment upon the ground that evidence of the plaintiff himself as to the cost of the use of another horse to favor the one in question, was improperly received on the question of damages. No claim, however, was made by the plaintiff for any special damages of this character, nor was the objection taken that it was not proper on the question of damages. Both parties appeared by counsel, and it is quite clear that both sides understood what the correct rule of damages was. From the whole case the fair inference is that this evidence was not offered or received on the question of damages, but by way of explanation of what had been drawn out by defendant’s counsel in the cross-examination of the plaintiff. It may be for this purpose it was not strictly proper, but it was not of such importance as to call for a reversal, in the light of the other evidence in the case.

There was no doubt about the right of the plaintiff to recover some amount. The evidence of the defendant himself called for the recovery of damages to the extent of at least twenty-five dollars ■, and, 'as appears by the amended return, he does not seem to be willing to say that that amount will make the horse as good as warranted. One witness called by the defendant on the subject of damages, and apparently rehable, places the damages at forty-five dollars. The evidence on the part of plaintiff showed damages to the extent of fifty dollars. The finding of the justice that plaintiff sustained damages to the extent of thirty-eight dollars and seventy-five cents, is abundantly sustained by the evidence, and, as well said by the county judge, seems to be eminently fair towards the defendant.”

The counsel for defendant suggests that errors sufficient to call for a reversal were made by the justice in other rulings on the subject of value. Ve think not.

We think that substantial justice was done in the Justice’s Court, and that no errors were made that were sufficient to call for a reversal. (Code, § 3063; Davison v. Luckman, 45 N. Y. St. Repr. 727 ; Jackson v. Collins, 41 id. 590; Lockwood v. Lockwood, 38 id. 601.)

HaRdibt, P, J. concurred ; Pabkee, J., not sitting.

Judgment of the County Court reversed and that of the justice affirmed, with costs to the appellant.


author: Hardin, P. J.:

text:
    Burr Mattice, Respondent, v. Henry Wilcox, Appellant.

      Libel concerning an attorney and public officer — •question of libel and privilege, one for the court• — question of doubtful meaning, for the jury — evidence of hearsay opinions in, mitigation of damages.

    The complaint in an action of libel, brought by an attorney at law, who had been employed as corporation attorney by the village in which lie resided, to recover damages for an alleged libelous circular caused by tlie defendant, who was a taxpayer of tlie village, to be printed and distributed among the citizens, taxpayers and others, set out tlie following paragraph of the circular : “ Make Burr Mattice (the plaintiff) attorney for the village, so that every person that gets spanked on the ice will be able to obtain a judgment (of) from §1,000 to §10,000 against the village.” On-the trial, the court ruled that this paragraph ivas libelous and not privileged.

      Held, that this ruling was correct, under the rule that, in a civil action for libel, where the publication is admitted and the words are unambiguous and admit of but one sense, the question of libel or no libel is one of law which the court must decide, and that in such an action it is for the court to determine whether the alleged libel was a privileged communication — the rule being the same where the alleged libelous charge is made against a public officer as such.
    The plaintiff had also been a town assessor, and another paragraph of the circular charged to be libelous, was as follows: “Elect Burr Mattice (the plaintiff) and Henry Potter assessors, to put up the valuation so that the trustees can rob the taxpayers on the two per cent levy.” The trial judge left it to the jury to determine the meaning of the language used, under instructions which were favorable in many respects to the defendant; the defendant thereafter made certain requests to charge, which were refused.

      Held, that, as of the requests refused some were not applicable to the case, and others were but to ask a repetition of the substance of what had been delivered to. the jury in the body of the charge, to decline such requests was not error. In such an action, it is not competent for the defendant to testify to hearsay opinions of citizens as to specific acts and conduct of the plaintiff, under the rule which allows evidence of facts and circumstances alleged in the answer by way of mitigation.
    Appeal by tlie defendant, Henry Wilcox, from a judgment of the Supreme Court, entered in tlie office of the clerk of Otsego county on tlie lltli day of June, 1892, upon a verdict in favor of tlie plaintiff rendered at tlie Otsego Circuit, and from an order denying the defendant’s motion for a new trial made upon a case containing exceptions.
    The action was brought to recover the damages resulting from an alleged libel. The plaintiff recovered a verdict for $1,000.

      F. R. Gilbert and O. L. Andi-us, for tlie appellant.

      Douglass W. Miller, for the respondent.
   Hardin, P. J.:

In 1890 the plaintiff was a citizen of the village of Oneonta; he was an attorney and counselor of the Supreme Court; he had been employed by the village as corporation attorney, and had had charge of several suits in its behalf; he had for two years prior thereto been an assessor of the town. The defendant was a resident of the village of Oneonta, owning considerable property therein, upon which he paid taxes. lie took the manuscript for the circular set out in the pleadings to Sidney, and had 300 copies printed, and when the same were received in the village of Oneonta he distributed them very extensively among the citizens of that locality; many of them to the taxpayers; quite a number of the circulars were placed in the hands, by the defendant, or at his instigation, of persons who were not taxpayers. In the first count of the complaint it is alleged, viz.: “ That the defendant, on or about the first day of February, 1890, wickedly and maliciously intending to injure the plaintiff in his good name, credit and fame, and to injure him in his profession and business as an attorney and counselor of this court, and to bring him into disrepute and contempt among all his neighbors and other good and worthy citizens, and to cause it to be believed and suspected by his said neighbors and other citizens, that the plaintiff had been and was guilty of malpractice in the practice of his profession, and was incompetent to properly discharge the important duties of his profession, and especially of his position as attorney and counsel to the board of trustees of the village of Oneonta, and to vex, harass and oppress him, the defendant did on the first day of February aforesaid, at Oneonta, N. Y., falsely, wickedly and maliciously, compose and publish, and cause and procure to be published in handbills (a copy of which is hereto annexed and forms a part of this complaint), and circulated and cause to be circulated extensively in the village of Oneonta and vicinity, of and concerning him, the said plaintiff, a false, scandalous and defamatory libel, containing, among other things, the false, scandalous, malicious, defamatory and libelous matter following, of and concerning the said plaintiff, that is to say: £ Make Burr Mattice attorney for tlie village, so that every person that gets spanlcecl on the ice will be able to obtain a judgment from $1,000 to $10,000 against the village,’ meaning thereby to charge plaintiff with want of skill and care, as the attorney'-for the village of Oneonta, in defending certain sxiits against said village, and meaning to charge thereby and did charge plaintiff with neglect in the care and management of suits against the said village, and with wrongful and dishonest conduct in his professional dealings as the attorney of said village.” The language quoted from the circular is known in the circular as the second paragraph. The complaint then proceeds to state that the circular contained another, paragraph known as the eighth subdivision of the circular, which is set out in the following language: “ Elect Burr Mattice and Henry Potter assessors, to put up the valuation so that the trustees can rob the taxpayers on the two per cent levy.” The complaint avers that the defendant intended to charge the plaintiff “with corruptly and dishonestly entering into an unlawful and collusive agreement with the board of trastees of said village to unlawfully and corruptly increase the assessed valuation of the said village, for the purpose of extorting money from the taxpayers of said village, which said libel is false and untrue.”

When the defendant’s answer was served, the plaintiff interposed a demurrer, which was sustained at Special Term, and the decision made at Special Term was brought before this court, and our decision thereon was made in 1891; the opinion delivered on that occasion appears in 36 N. Y. St. Repr. 914; in the course of that opinion, we said: “We think the words found in the complaint were libelous within the rule laid down in Sanderson v. Caldwell (45 N. Y. 398).” An appeal was taken from our decision, and our judgment was affirmed by the Court of Appeals. (See 41 N. Y. St. Repr. 946.)

In Moore v. Francis (121 N. Y. 202), Andrews, J., said : “It is the settled law of this State that in a civil action for libel, where the publication is admitted and the words are unambiguous and admit of but one sense, the question of libel or no libel is one of law which the court must decide.” We think that the trial judge properly ruled that the second paragraph taken from the circular was libelous and was not privileged.

In Hamilton v. Eno (81 N. Y. 116), it was held that, “in an action for libel, it is for tlie court to determine whether the alleged libel was a privileged communication; ” and it was also held in that case that the rule is the same where the alleged libelous charge is made against a public officer, as such.” In that case, the plaintiff was an assistant sanitary inspector of the board of health of the city of New York, and in that capacity he made a report, and the defendant had written a letter in respect thereto which was published in the Tribune. In the course of the opinion delivered in that case, it was said that the report was legitimate subject of criticism, and that the defendant might question its statements of fact and deny them; he might exposd misrepresentations and point out errors; he might combat its reasoning and show its conclusions ill drawn; and he might do so with satire and ridicule, so long as he directed those missiles at the report and- the contents of it. But he could not attack the private character of the author; to do so would be libelous. (Cooper v. Stone, 24 Wend. 442.)” We think that case does not support the contention of the appellant. This case is unlike Lewis & Herrick v. Chapman (16 N. Y. 369). That was a case where a communication was made by a banker as to the makers of a note, and in the course of the opinion delivered in that case, to the effect that the communication was privileged, the reason given was “ because it was made in confidence, to persons directly interested in it, and apparently by way of advice.”

In Ormsby v. Douglass (37 N. Y. 477), the nonsuit was granted on the ground that the words spoken by the defendant concerning the plaintiff appeared to have been spoken confidentially, in the course of the defendant’s employment, to one of his employers, on the application of the latter, who had need of the information for the purpose of governing his discretion in his business, and that, under the circumstances, the communication was not unlawful, there being no evidence of malice or bad faith.” The case is quite distinguishable from the one before us. Upon an examination of the whole language found in the circular “ it appears to admit of no just construction, except one which is injurious to the plaintiff.” Therefore, within the rule laid down in Lewis & Herrick v. Chapman (16 N. Y. 371), “ Its meaning is to be determined by the court.” And the court’s determination in regard to paragraph No. 2 was not erroneous.

(2) In the eighth paragraph of the circular published by the defendant are found these words : “ Elect Burr Mattice and Henry Potter assessors, to put up the valuation so that the trustees can rob the taxpayers on the two per cent levy.” In dealing with that branch of the case the trial judge submitted to the jury an inquiry as to the meaning of the words used in the circular. Tie said : “ This is a question of fact as to what it means, left to your judgment and not tó mine.” He then proceeded to state to the jury that the defendant claimed “ that there is no charge against Mr. Mattice in them that would tend to bring him into any discredit or disgrace, or that would tend to lessen the confidence of anybody in him in any way ; in other words, that there is nothing libelous about it; ” and after further comment lie added : “ Now, if that is all there is to it, if there is no charge against Burr Mattice there at all, if it is simply a statement that if Burr Mattice is elected he is in favor of raising the valuation, and if the valuation -is raised the iniquitous trustees will avail themselves of the raise to rob the citizens by putting the whole two per cent on them; if that is all there is to it, there is no charge or libel, no evil intent charged against Burr Mat-tice.” After having made this liberal statement, quite as favorable as the defendant was entitled to have made, he continued and stated the claim of the plaintiff in respect to the language used; and he left it to the jury to say vrhether the charge was justified, as well as to determine the meaning of the language used, and instructed the jury that if they found in accordance with the claim and construction put upon the words by the plaintiff, that then the language amounted to a libel; and after directing their attention to the mitigating circumstances he said: “ So far as this second is concerned, if you shall believe it to be a libel, you may, as I said in regard to the first one, not only give such a sum as you believe will compensate the plaintiff for any injury which he sustained by it, but you may give punitive damages. That depends upon the question horv far you shall believe that the defendant was inspired with malice in publishing it against Mr. Mattice.” Again he adds : “Although the law infers malice from tire publication of a libel, yet if, from all the evidence in the case, you shall believe that he was not malicious, the amount of punitive damages which you give against him should be controlled by just so far as you shall deem his malice to have been great ór little. If you gentlemen believe there was no malice, you should not give any punitive damages. If you believe there was much or little, regulate your punitive damages accordingly; but for the damages you believe are a just compensation to this man you will render a verdict as a matter of law without regard to the amount of malice which inspired the defendant.” After the delivery of a charge favorable in many of its features to the defendant, numerous requests were made, some of which were not applicable to the case, and some of which were but to ask a repetition of the substance which had been delivered to the jury in the body of the charge; to decline to yield to such requests was not error.

(3) Defendant was examined as a witness in his own behalf upon the trial, and, among other things, testified, viz.: “ It was commented upon and talked that' these matters were carried on under the advice of the plaintiff; at the time I published this article, I believed in good faith that the course which the village officers were taking in connection with the plaintiff, and under his advice, was resulting injuriously to the taxable inhabitants of the village of Oneonta and town of Oneonta; I had no other motive in publishing the article except for the purpose of guarding and protecting my own interests and the taxpayers’ interests in the village and town of Oneonta; I did not intend or desire to injure the plaintiff in any manner whatever; all the motive I had was simply to have those abuses corrected.” It is now insisted in behalf of the appellant that an error was committed in excluding an answer to the following question: “ Prior to the publication of this article, was the conduct and acts of this plaintiff, as one of the assessors of the town, the subject of general comment among the people ? ” It is manifest, from the evidence found in the appeal book, that the matters embraced in the question had been the subject of discussion among the citizens of that village. It is' difficult, therefore, to see that the defendant suffered anything by the ruling, even if it be assumed that it was technically erroneous. Polio wing that question was another which assumed that comments had been made by the inhabitants of the village, and the witness was asked to state, “ vras the opinion frequently expressed that he was not a proper person, under the circumstances, to be thus employed?” Objection was made to the question and sustained. The question was leading, and it called for the opinion of others “in reference to the acts of the plaintiff as counsel for the village; ” and if an answer had been given, it is difficult to see how the opinions could furnish a justification of the defendant. While it was competent to show that the general character of the plaintiff was bad, no such attempt, however, was made, and the opinions of citizens as to specific acts, if received, would not establish that his general character was not good, nor would the opinions frequently uttered justify the defendant in publishing the libel complained of. (Root v. King, 7 Cow. 613; Gilman v. Lowell, 8 Wend. 573.) Facts and circumstances which tend to disprove malice may be given in evidence. (Bush v. Prosser, 11 N. Y. 347; Hatfield v. Lasher, 81 id. 246.) The defendant was allowed to-give such facts and circumstances as were set out in his answer by way of mitigation, but the question propounded only called for hearsay opinions, and it is difficult to see how the witness was competent to state hearsay opinions, under the rule allowing facts and circumstances alleged in the answer to mitigate damages.

Appellant calls attention to Cameron v. The Tribune Association (27 N. Y. St. Repr. 907), which was an action for libel in that the defendant published a dispatch from its Boston agent; there was a discrepancy between the original dispatch received by the agent and the condensed one; the defense was justification, and it was held that evidence of the facts and circumstances which led the agent to fall into the error was competent upon the question of malice and punitive damages. In that case there was a justification and an averment that the plaintiff was a man of bad character, and that the telegram was received from defendant’s correspondent in the usual course of business and printed in good faith as an item of news. The case differs essentially from the one before us. Some criticism is made relating to the defendant’s good faith or motive in regard to the publication. The defendant in effect answered the questions in that regard in the course of his testimony direct and in cross-examination. At folio 182, he says : “ I published it for no other purpose or with no other motive than simply to protect my interests as a taxpayer; ” and at folio 190, he says: “ I circidated it without any animosity at that time or vindictiveness against him ; I done it in the interest of the taxpayers and myself; ” and at folio 192, he says: I had no animosity when I published this article.” By the answers quoted the defendant was permitted in effect to state that he published the circular in good faith, and the rule laid down in Bennett v. Smith (23 Hun, 50), and followed in Lally v. Emory (28 N. Y. St. Repr. 127), was complied with.

Other rulings are criticised, and we have examined them and are persuaded that the rulings were not prejudicial to the rights of the defendant.

The foregoing Views lead us to sustain the verdict taken at the Circuit.

MeewiN, J., concurred ; Pabeer, J., not sitting.

Judgment and order affirmed, with costs.