author: Mayham, P. J.: Putnam, T.:

text:
    John Flood, Respondent, v. Henry Van Wormer, as Commissioner of Highways of the Town of Rotterdam, Schenectady County, N. Y., Appellant.

      Equity — removal of an alleged encroachment upon a highway by the commissioner,

    The rule in equity, that before the.equitable powers of the court can be invoked and a party can enjoin another from any anticipated injury, he must wait until his rights have been actually interfered with, is subject to the following exceptions :

      First, where the proceedings in the subordinate tribunal will necessarily lead to a multiplicity of actions ;

      Second, where they lead in their execution to the causing of irreparable injury to the freehold;

      Third, where the claim of the adverse party to the land is valid upon the face of the instrument or proceedings sought to be set aside and extrinsic facts are necessary to be proved in order to establish its invalidity or illegality.
    In an action brought to restrain a commissioner of highways from proceeding to remove the plaintiff’s house as an alleged encroachment upon a highway, it appeared that the commissioner had notified the plaintiff in writing to move the house, and accompanied such notice with an order signed by the commissioner, establishing the encroachment, and ordering the removal of the same from the highway.
    It further appeared that the order was of itself prima facie evidence of the right of the commissioner to remove the obstruction, and that it would require some evidence on the part of the plaintiff to defend himself and his possession from the operation of that order. It did not appear, however, that -the commissioner had removed or in any way attempted to remove the plaintiff’s house, or interfered with or damaged it, except by service of the notice and order above mentioned, although the complaint alleged that the plaintiff feared and had reason to believe that the commissioner would remove his house in pursuance of such order under the statute without any legal proceeding to determine the question whether or not the house encroached upon, the highway.

      Held, that, the evidence showing that the house was not an encroachment upon the highway, the commissioner was properly enjoined from enforcing, by the removal thereof, the order which had been made by him;

      That, while if an action were brought by a commissioner to recover the penalty prescribed for a violation of the order, the party charged with the encroachment could interpose the common-law defense and thus try the question of the alleged encroachment; yet, if the commissioner saw fit to adopt the other method designated in the statute of summarily removing the encroachment, the party charged therewith would be remediless, except as he might obtain redress in an action for trespass, which would offer inadequate relief against the injury which might be inflicted in the demolition or removal of the house;
    That the order of the commissioner being prima, fade evidence of his right to remove the obstruction, and being a matter of record in the office of the town clerk, and constructive notice to all persons, as far as the highway in question was concerned, of the existence of the alleged encroachment, it would operate as a cloud upon the plaintiffs title, which equity alone would have the power to remove. (Per Mayham, J.)
    Appeal by tlie defendant, Henry Van Wormer, as commissioner of highways of the town of Rotterdam, Schenectady county, New York, from a judgment of the Supreme Court, entered in the clerk’s office of the county of Schenectady on the 28th day of July, 1892, in favor of the plaintiff, adjudging that the house of the plaintiff does not encroach upon the highway mentioned in the complaint, and enjoining the defendant and his successors in office perpetually from removing or interfering with said house, and awarding costs to the plaintiff, after a trial at the Schenectady Circuit before the court, without a jury.

      Daniel Uaylon, Jr., and Alonzo P. Strong, for the appellant.

      Lewis Gass and Jacob LL. Glute, for the respondent.
   Mayham, P. J.:

This is an appeal from a judgment entered upon the report of Hon. Charles O. Tappan, as referee, in an action in equity to restrain the defendant, as commissioner of highways, from proceeding to remove plaintiff’s house, which it was alleged encroached upon the public highway, and which he was about to remove as an alleged encroachment.

The defendant, at the time of the commencement of the action, was, and for sometime previous thereto had been, the sole acting commissioner of highways of the town of Rotterdam, Schenectady county. The plaintiff, since the 29th day of July, 188Y, had been the owner in fee of the lands described in the plaintiff’s complaint, and in tlie fall of 1887 erected a house on said premises, which has ever since remained thereon.

On the 13th day of July, 1891, the defendant, acting as sole commissioner of highways, assuming in good faith to believe that the plaintiff’s house encroached upon the public highway in his town, served or caused to be served upon the plaintiff a notice and order of which the following is a copy :

To John Flood:
“ Take notice, that an order has been duly made by the commissioner of highways of the town of Rotterdam, a copy of which is hereby inclosed and is part of this notice, and that you are required according to the statute in such case made and provided, to remove the building or house therein mentioned in said order within sixty days of the service of this notice upon you.
“ Dated Jul/y 13th} 1891.
“ HENRY YAN WORMER,
Commissioner of Sighwa/ys of the Town of Rotterdam.”

To this notice was attached the following order:

I, the undersigned, sole commissioner of highways of the town of Rotterdam in the county of Schenectady, N. Y., having ascertained that the public highway in said town known as the Schenectady and Duanesburgli plankroad, leading by and in front of the premises of John Flood in said town, is encroached upon the northerly side thereof by thé frame house the property of the said John Flood, the extent of which encroachment is as follows, viz.: The southerly side or front of the said house is in on the said highway to the following extent: All that piece of land south of a straight line passing through a point in the easterly side of said house eight and nine-tenths (8-j^-) feet north of the southeasterly corner of said house, westerly, and a point in the westerly side of said house two and two-tenths (2T2T) feet north of the southwesterly corner of said house is a part of the said highway.
“This encroachment is arrived at by a survey which I have caused to be made of said highway, which survey shows that the northerly bounds and limits of said highway runs through the said • building herein referred to, and along the' said straight line herein described, and that all that piece of land which lies under the said building south of the northerly bounds of said highway or straight line herein described, is a part of the public highway aforesaid.
“ It is therefore hereby, ordered by the said commissioner of highways of said town that the said building or house be removed so that the highway be opened, unobstructed, and free from encroachments, and of the breadth which was originally intended, which was three (3) rods, as appears by the description of said highway on record in the town clerk’s office in the town of Rotterdam and the Schenectady county clerk’s office.
“ Dated July 13th, 1891.
“HENRY VAN WORMER,
Oommissioner.”
“I have also caused stakes to be driven along the northerly bounds or limits of said highway along the encroachment herein referred to, which stakes if connected in the order in which driven by a straight line marks the northerly bound or limit of said highway.
“ HENRY VAN WORMER,
Oommissioner.”

The evidence discloses that after the service of this notice and before the commencement of this action, the plaintiff had an interview with the defendant in which he asked the defendant if he intended to remove the plaintiff’s house when the sixty days were up, to which the defendant replied: “ First I will collect the twenty-five dollars ($25) fine and then I will go on and move it.” The evidence also shows that the defendant has not removed or in any way attempted to remove the plaintiff’s said house, or in any way interfered with or damaged the plaintiff’s house or premises, except by service of the above notice and copy order.

The complaint alleges that the plaintiff feared and had reason to believe that the defendant would remove his house in pursuance of said order under the statute without any legal proceeding to determine the question whether or 'not he at the time of said notice encroached upon the highway. The highway in question had been in existence and use as a highway for many years before 1849 as a public road, leading from Schenectady westerly to Duanesburgh, but there is no evidence that it had ever been laid out or recorded as a public highway otherwise than by the records of the laying out of the Schenectady and Duanesburgh plankroad, nor does it appear what the width of said highway was before said plankroad was laid out, except along said plaintiff’s premises it had been divided by fences on either side of the same for more than forty years.

The plankroad which occupied and adopted portions of the highway in question, was constructed by a corporation duly formed and incorporated on the 4th of June, 1849, under and in pursuance of chapter 210 of the Laws of 1847, under the corporate name or title of “ The Schenectady and Duanesburgh Plankroad Company,” for the construction of a plankroad from the city of Schenectady to the valley of the Schoharie creek or a point in the division line of Schoharie and Schenectady counties.

The evidence also showed that the plankroad company on the 21st of February, 1849, applied to the board of supervisors of the county of Schenectady for authority to take the necessary land for the purpose of the construction of its road, in which application the route of the proposed road was described as in the article of association filed by the company, and upon such application the board of supervisors made an order of which the following is a copy:

“ The said company having produced the necessary evidence that the notice required by said act had been duly given to authorize them to present such application, the said application having been heard and duly considered by this board, and they being of opinion that the public interest will be promoted by the construction of the road on the route proposed and described in said application, do unanimously grant the said application. Therefore, it is hereby ordered that the said Schenectady and Duanesburgh Plankroad Company be and they are hereby authorized to construct such road upon the route specified in said application and to take the real estate necessary to be used for that purpose; and
“ It is further ordered that the clerk of the board furnish the said corporation with a copy of this order, certified by him, for the purpose of being recorded.”

The board of supervisors also appointed three disinterested persons to lay out said plankroad.

The evidence shows that said commissioners proceeded pursuant to the authority conferred upon them by the board of supervisors, and caused a survey and description to be made of tlie route of tlie plankroad so laid out by them and of the lands to be taken by the company for the construction of said road, and the actual survey made by the commissioners and filed pursuant to law was, as far as it related to the location of the plankroad over and along the land of the plaintiff, put in evidence on this trial; but the learned referee finds that it did not appear upon the trial of this action that the course and distance of the center line of said road are correctly and accurately given in said order and survey.

The case shows and the referee finds that the lands of which the plaintiff’s premises are now a part abutted upon that part of the route of the plankroad, as laid out by said order and survey,, described in the seventeenth course of said survey, and appears to have been south forty-six degrees west as the compass bearings then were, and the length of the course about seventeen chains.

The evidence discloses that the plankroad company entered upon and took possession of the land in said survey about the year 1849 or 1850, and built a plankroad on the same. The case does not disclose that any compensation was paid to the owner of these lands, which now belong to the plaintiff, by the plankroad company.

About the year 1857 or 1858 the plankroad and franchise were sold under a mortgage foreclosui-e and the purchaser under such foreclosure continued to occupy the same as a plankroad for a few months thereafter. He then abandoned all of said road, except the easterly end of two miles, which extended along the premises in controversy. ‘The two miles not abandoned were continued to be occupied as a plankroad by different owners and occupants down to about the close of the year 1889, when the two miles were also, abandoned, and that portion of the plankroad has since been used as a public highway in connection with the road previously abandoned.

The proof shows and the referee finds, that there has been no material change of the position of the location of the traveled part of the road along the premises in question' from the time it was-first used as a highway, or during the time it was used as a plank-road, down to the present time.

The proof also shows and the referee finds, that when the plank-road was first built, and from that time down to about the year 1887, there was along the north side, and extending from the toll house easterly to a point on the east line of the plaintiff’s premises, a bank of earth and sand varying in height from ten to fourteen feet above the grade of the plankroad, and that upon the top of this bank, and running easterly in a straight line and parallel to the traveled part of the road, was a fence extending from the toll house to a point east of the east line of plaintiffs premises; such fence, so long as it existed and so far as it extended, was, and its line now is, the northerly boundary of that part of said road or highway as such boundary is, and was fixed and located by ■ the practical location of the fence of such northerly line dr boundary.

The referee also finds, upon what appears to be sufficient proof, that the plaintiff’s house is not within the bounds of said highway as defined by said fence.’

At the time the defendant made' the survey upon which it is alleged the encroachment was established, the planks of the old' plankroad remained in position as they were when said plankroad was constructed, and the southerly ends of these planks were thirty-two feet distant from the plaintiff’s house, and the northerly ends of said planks were twenty-four feet distant therefrom, and the fence on the southerly side of said highway, opposite plaintiff’s house, has remained substantially the same as when said order was made and in the same location which it now is for more than forty years.

TJpon these facts the referee finds, as conclusions of law, that this road was a public highway before the plankroad was laid out or constructed, and that after that it continued such highway, subject to the control of the plankroad company, and that the control of the commissioners of highways was in subordination to the rights acquired by that company; that the surveying, and laying out of the plankroad on the line of the highway did not make it a surveyed or recorded highway, but it remained a highway only to the extent that it had been used and occupied for that purpose, and that the use of its. line by the plankroad was a part of the evidence of user, competent and material upon the question of the location and extent of the highway ; that as the highway had never been laid out, surveyed and recorded as such, it became a highway only to the extent, of the public user, and as the plaintiff’s house did not stand within the limits of the highway, so used by the public as such, it was not an encroachment upon the highway as claimed in the notice and order of the commissioner, and any removal of the same by the commissioner would be a wrongful invasion of the plaintiff’s premises, and that the. notice and order above recited, with the statement made by the defendant to the plaintiff, that he would first collect the fine and then remove the house, was a threat to do the plaintiff’s property an irreparable injury, for which the plaintiff would have no adequate remedy at law and for which an injunction would lie.

We think the holding of the referee, that this house did not encroach upon the highway, is clearly sustained by the evidence. The plaintiff did not comply with the terms of the notice or order of the commissioner, and took no steps to remove the house as required therein, and the commissioner, at the time of the commencement of this action, had not commenced an action to recover the penalty, nor had he taken any steps, except by the service of the notice and order, to remove the house as an alleged encroachment upon the highway.

The principal question, therefore, on this appeal is whether an equitable action for an injunction will lie under the circumstances of this case.

The general rule to be observed by parties in invoking the equitable powers of the court, is that they must wait until their rights have been actually interfered with before they can enjoin another from whom they anticipate injury. (Guest v. The City of Brooklyn et al., 69 N. Y. 512.)

To this rule, however, there are certain recognized exceptions:

“ First. Where the proceedings in the subordinate tribunal will necessarily lead to a multiplicity of actions.
£‘ Second. Where they lead in their execution to the commission of irreparable injury to the freehold.
“ Third. Where the claim of the adverse party to the land is valid upon the face of the instrument or proceedings sought to be set aside and extrinsic facts are necessary to be proved in order to establish the invalidity or illegality.” {Haywood v. The City of Buffalo, 14 N. Y. 541.)

We think this case comes clearly within at least two of these exceptions. The notice and order served by the commissioner were under section 105 of chapter 568 of the Laws of 1890, which reads as follows:

Section 105. How removed, cmd liability for not removi/ng. The commissioners of highways shall serve upon the owner or occupant of lands adjoining that part of a highway' within their town in which any obstruction or encroachment may exist, a notice specifying the extent and location of such obstruction or encroachment, and directing such owner or occupant to remove the same within a specified time, not more than sixty days after the service of the notice.”
“ If such owner or occupant shall neglect or refuse to remove such obstruction or encroachment within such time he shall forfeit to the town the sum of twenty-five dollars, and the commissioners may remove such obstructions or encroachments at the expense of the town, which may be recovered by action of such owner or occupant, or the said commissioners may bring’ an action in any court of competent jurisdiction to compel such owner or occupant to remove such obstruction or encroachment. Actions by commissioners of highways, as in this section provided, shall be in the name of the town.” i

It will be seen by a perusal of this section, that the commissioner determines in the first instance whether or not an encroachment exists upon the highway, and upon such determination, serves the required notice and order. The consequence of the disobedience of such an order subjects the person charged with the encroachment to the hazard of being prosecuted for the penalty, or of having the commissioner, without further-notice, remove the encroachment, or of being prosecuted in an action in equity to compel this removal.

It is probably true that in an action for the penalty, which is an action at law, the party charged with the encroachment could interpose a common-law defense, and thus try the question of the alleged encroachment; but if the commissioner saw fit to adopt the other method provided for in this section, and to summarily remove the encroachment, as he may do under this section, the party would be remediless, except such remedy as might be afforded in an action for trespass.

Such a remedy would not be an adequate one and afford adequate relief against the injury which might be inflicted in the demolition or removal of the plaintiff’s house. As this section affords no opportunity to arrest or prevent the destruction of the plaintiff’s property by the commissioner, no opportunity exists to try tire legal rights of the parties, or the truth of the charge of encroachment, until the prosecution and possibly effectual remedy of an action' of trespass at law. We are clearly of the opinion that, against such innovation of the rights of the citizen, the court of equity may, in a proper case, and we think in this, interpose by injunction; nor can the plaintiff be compelled to wait and seek his remedy in a court of equity after the injury has been actually inflicted. The prima facie rights of the commissioner to remove, being established by his order, under this section it would require some evidence on the part of the plaintiff to show that that right was improperly exercised in this case, and that the house which was charged to be an encroachment was not located within the bounds of the public highway.

This would bring the case within the third exception referred to in Haywood v. Buffalo (supra).

Where the claim of the adverse party to the land -is valid upon the-face of the instrument, or the proceedings sought to be set aside, and extrinsic facts are necessary to be proved in order to establish the invalidity or illegality.”

There is another equitable principle which would seem to authorize the maintenance of this action for the protection of the plaintiff. As we have seen, the order is prima facie evidence of the rights of the commissioner to remove the obstruction, and that it would require some evidence on the part of the plaintiff to defend himself and his possession from the operation of that order. That being so, the order being a matter of record in the office of the town clerk, and constructive notice to all as far as this highway is concerned, of its extent and of this alleged encroachment, the order would operate, it seems to us, as a cloud upon the plaintiff’s title which equity alone would have the power to remove. (Scott v. Onderdonk, 14 N. Y. 9; Haywood v. Buffalo, supra; Ward v. Dewey, 16 N. Y. 519; Hatch v. City of Buffalo, 38 id. 276; Allen v. City of Buffalo, 39 id. 386; Crooke v. Andrews, 40 id. 549; Newell v. Wheeler, 48 id. 486.)

We are, therefore, clearly of the opinion that for the reason, and witbin the authorities stated, this case is one proper for the equitable cognizance of this court.

We think, therefore, the decision of the learned referee in this action was correct, and that the judgment must be affirmed.

Putnam, T.:

I have entertained doubts as to whether the action can be maintained on the conditional threat of defendant to remove plaintiff’s building after he had collected the penalty of twenty-five dollars.

But I conclude that the very existence of the order declaring plaintiff’s house an encroachment on the highway constituted a threat justifying the action. If the house was an encroachment the duty devolved on defendant to remove it, and he could at any time, without a moment’s warning, proceed to do so.

Without considering the question as to whether the order constitutes a cloud on the title, I think there should be an affirmance 'of the judgment.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Mayham, P. J.:

license: Public Domain

text:
    George H. Sherman, Respondent, v. Walter G. Rogers, Appellant.

      Libel — verdict not set aside unless induced, by passion, prejudice or influence.

    In an action for the recovery of damages for an alleged libel, it is well settled tliat a verdict of a jury will not be interfered with by tbe court unless it is such, as to be evidence, in itself, that the jury im rendering the verdict was actuated by.passion or prejudice or some undue influence, and not solely by the evidence.
    Appeal by th^ defendant, Walter G. Rogers, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Warren on the 18th day of June, 1892, in favor of the plaintiff, after a trial at the Warren County Circuit before the court and a jury, with notice of an intention to bring up for review upon such appeal an order denying the defendant’s motion for a new trial made on the minutes of the court and entered in the Warren county clerk’s office.

      The action was brought to recover damages occasioned by an alleged oral slander and resulted in a verdict for the plaintiff for six hundred dollars ($600).
    The words charged in the complaint are: “You are a thief; you are a damned thief; you stole a wagon of me; you are a robber, and I can prove it.”
    The answer was a general denial and alleged in mitigation of damages that at the time of uttering the words chai’ged in the complaint the defendant was greatly excited in consequence of charges made by plaintiff against him, and the language used by him in consequence of such excitement was stronger than it would otherwise have been.

      LLmg (& Ashley and J. M. Whitman, for the appellant.

      Lyman Jenkins and S. A. LLoward, for the respondent.
   Mayham, P. J.:

The words charged in the complaint were on the trial proved to have been uttered substantially as alleged. The case discloses that the plaintiff came to a shop in which the defendant was employed, and asked who could give him the price of painting a wagon. The defendant replied: “ Oh, you go long; you stole a wagon from me once and sold it; you are a thief and I do not want to have anything to do with you.”

Defendant then started to go out of the shop, and said, “ "Who does your painting ? ” The answer was, “ Mr. Sherman does our painting.” Rogers spoke to the man in his wagon, “Drive on, Charlie, I do not want anything to do with that man; he is a thief \ he stole a wagon from me once ; he can’t have any work of mine.”

Sherman said, “Hold on, you darned sucker, I will call you down sometime for that, calling me those names ; you have no right to call me those names.” Defendant said, “ You are a thief, and I can prove it.” The evidence discloses no denial of this language by the defendant on the trial; but it is urged that evidence was offered by the defendant tending to show that the charges made by the defendant against the plaintiff relate to a transaction which was in itself not a larceny, and that the hearers of these actionable words knew to what transaction they related, and knew that they did not convey or intend to convey the charge of the crime of larceny, but we do not think that contention is justified by the proof.

It is also urged by the appellant that the court erred in excluding certain offers of the defendant tending to prove the nature of the transaction to which the words related, which are claimed to be actionable; but we fail to see that the learned trial judge committed any error in excluding evidence. The evidence excluded, which is claimed by the appellant to be error, was not proper under the answer, and we think the court went as far as the rules of evidence justified in admitting the witnesses to answer what they understood from the charges made by the defendant.

It is also urged that the damages in this case were excessive and that the refusal of the learned trial judge to set aside the verdict on that ground on a motion made upon the minutes was error. ~We do not think that the verdict in this case was so large as to evince passion or prejudice on the part of the jury. In actions of this character the rule is well settled that the verdict of a jury cannot be interfered with by the court, unless it is so large as to 'be evidence in itself that the jury, in rendering the verdict, was actuated by passion or prejudice, or some undue influence, and not solely by the evidence. The charge in this case was proved beyond controversy. It was not sought to be justified, and we see no circumstance, either disclosed by the evidence or in the offers of proof made by the defendant, calculating in any considerable degree to mitigate the gravity of the charge made against the plaintiff.

On the whole case we see no error for which this judgment should be reversed.

The judgment should be affirmed, with costs.

Putnam and Herrick, JJ., concurred.

Judgment affirmed, with costs.


text:
    Jacob M. Snyder, Appellant, v. Henrietta Church and Philip Bartholomew, Respondents.
    Ejectment— not sustainable under am equitable claim — champerty.
    In an action of ejectment the plaintiff is properly nonsuited, where he fails to show any legal title in himself, other than through a claim that an instrument in writing, had been received by him from the plaintiff’s predecessor in title, with the understanding and in the belief that it was a conveyance of the premises in question, but which'in fact neither conveyed the premises in question nor was signed by the owner of the title thereof, and upon its face related to other property.

      Semble, if such claim were asserted in an equity action brought to reform such an instrument, and based upon mistake or fraud, it would be otherwise.
    Where a complaint in ejectment shows that the defendant, at the time of the commencement of the action, and for eight years prior thereto, and at the time when the conveyance was made to the plaintiff, had been in possession of the premises in question, holding adversely to the plaintiff’s grantor, under a claim of a specific title, the plaintiff is properly nonsuited, upon the ground that the conveyance to him was void, under the statute of champerty and maintenance.
    The rule is well settled, that in actions of ejectment the plaintiff must recover upon the strength of his own title, and not upon the weakness of the title of his adversary.
    Appeal by tbe plaintiff, Jacob M. Snyder, from a judgment of tbe Supreme Court, in favor of tbe defendants, dismissing tbe complaint upon tbe merits, entered in tbe office of tbe clerk of tbe county of Albany on tbe 22d day of October, 1892, after a trial before tbe court and a jury, at tbe Albany Circuit.

      W. Youmcms, for tbe appellant.

      Mcurous T. JEun, for tbe respondents.
   Mayham, P. J.:

The complaint is in the usual form in an action in ejectment, alleging that tbe plaintiff is tbe owner in fee of a farm of about 130 acres of land, and alleges that "Walter S. Church for about eight years before tbe commencement of the action bad been in tbe wrongful possession and was wrongfully withholding the possession, and that tbe annual value of tbe use of "the premises was about $200.

Tbe complaint demanded judgment for tbe possession of tbe farm and damages for tbe use of tbe same.

Tlie answer was a general denial. On the trial the plaintiff put in evidence a lease, dated May 9, 1797, executed by Stephen Yan Rensselaer to John Jose Shafer. The lease granted, sold, remised, released and confirmed the demised premises to. the lessee upon conditions of payment by him or his assigns of an annual rent, and the performance of the annual service therein specified, and was in the usual form of the Yan Rensselaer manorial leases, and purported to convey 253£ acres of land.

The plaintiff also put in evidence a warranty deed from John Jose Shafer to John J. Deitz, dated the 14th day of October, 1831, purporting to convey 126 acres of land, being the north half of the land originally leased by Stephen Yan Rensselaer to John Jose Shafer, father of the grantor in said deed. This deed was subject to the rents and reservations contained in the original lease.

The plaintiff also put in evidence the last will of Stephen Yan Rensselaer, devising all his interest in his lands and rents reserved to his son Stephen Yan Rensselaer, which will was admitted to probate April 30, 1839, also a deed from Stephen Yan Rensselaer to James Kidd and Peter Cagger, dated May 2,1864, conveying the landlord’s interest in the premises in question.

The plaintiff’s counsel also put in evidence a deed from James Kidd and Peter Cagger to Valter S. Church, dated July 8, 1878, conveying the landlord’s interest in the premises in question.

The plaintiff gave evidence tending to prove that Valter S. Church acted as the agent of Kidd and Cagger previous to the time of their deeding to him their interest hi this land, with others. That Church had an office and did the business, except in suits, and Cagger was the attorney.

Plaintiff also gave evidence by several witnesses tending to prove that an instrument purporting on its face to be a deed from Kidd and Cagger to Jacob Deitz, dated 17th of May, 1867, and to convey the premises in question, was made out in the handwriting of Valter . S. Church, but which purported to have been signed by Paul Coggerville and J. Koons. This deed was offered and received in evidence with its indorsements, and is as follows:

This Indenture, made the seventeenth day of May in the year" of our Lord, one thousand eight hundred and sixty-seven, between James Kidd and Jane Maria, his wife, and Peter Cagger and Elizabeth E., Ms wife, of the city of Albany, and Jacob I. Deitz, of the town of Berne, in the County of Albany, of the second part,
“ Witnesseth, that whereas, Stephen Yan Rensselaer, now deceased, by an indenture dated' on the 21st day of January in the year eighteen hundred and one, granted and conveyed to Jacobus Deitz, certain lands, embracing the lands which are hereinafter more particularly described, subject to a certain perpetual rent, and to certain reservations and conditions in and by said indenture of lease provided for, and whereas by various grants, assignments and conveyances the title to said reserved rent, and to all the estate and interest of said Stephen Yan Rensselaer in the premises so leased in fee, and particularly hereinafter described and granted, has become and is vested in the parties of the first part hereto.
“Now, therefore, the said parties of the first part, for and in consideration of the sum of two thousand dollars, lawful money of the United States of America, to them in hand paid, by the said party of the second part, the receipt whereof is hereby confessed and acknowledged, have granted, aliened, remised, released, enfeoffed and confirmed, and by these presents do grant, alien, remise, release, enfeoff and confirm unto the said party of the second part, and to his heirs and assigns forever, all the said rent so reserved out of and chargeable upon, and all his estate and interest in certain lot, piece or parcel of land, situated now in the town of Berne, in the State of New York, County of Albany, and Manor of Rensselaerwyck, and-hereinafter more particularly described. Together with all and singular the rents, hereditaments and appurtenances thereunto belonging, or in anywise appertaining, and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof, or issuing or reserved therefrom; and all the estate, right, title, interests, claims and demand whatsoever of the said parties of the first part, either in law or equity, of, in and to the above granted premises, with the said hereditaments and appurtenances. To have and to hold the above mentioned rents, and hereinafter described premises, with the appurtenances, and every part and parcel thereof, to the said party of the second part, his heirs and assigns forever. And the said James Kidd and Peter Cagger for themselves, their heirs, executors and administrators, do covenant, grant, bargain, promise and agree,-to and with the said party of the second part, his heirs and assigns, to warrant and forever to defend to the said party of the second part, his heirs and assigns, against the said parties of the first part, their heirs, executors, administrators, and assigns, and against all and every other person or persons claiming or to claim, by, under or through them, the said parties of the first part, or their, or any of their acts, or deeds, the said above mentioned and hereby granted rents, and premises, which are more particularly described, as follows, viz.: All that certain piece or parcel of land situate, lying and being in the Town of Berne, and being the same lands which the Sheriff of Albany County conveyed to John B. Deitz, and the same as were formerly owned by Jacob I. Deitz.
“ In witness whereof, the said parties of the first part have hereunto set their hands and seals the day and year above written.
' “ PAUL COG-GÉRYILLE. [l. s.]
“ J. KOONS. [l. s.]
Sealed and delivered in the presence of
“E. Williams.”

Indorsed: Warranty Deed. James Kidd and Jane Maria, his wife, and Peter Cagger and Elizabeth F., his wife, to Jacob I. Deitz. Dated the 17th day of May, 1867.”

There was evidence tending to show that Church delivered this instrument to Jacob I. Deitz, the grantee therein named, afithe time it bears date, and the-plaintiff urges that it appears from the deed itself that Deitz paid the consideration therein expressed of $2,000.

The plaintiff also put in evidence a deed from Jacob I. Deitz to Jacob M. Snyder, purporting to convey the premises in question, dated July 3, 18.90.

The plaintiff also proved the death of Walter S. Church after the commencement of this action, the probate of his will and the substitution of Henrietta Church, his executrix and devisee of his lands, as defendant in this action.

Upon these facts the defendant, at the close of the plaintiff’s evidence, asked the court to nonsuit the plaintiff. The plaintiff insisted on submitting the case to the jury. The court declined to submit the case to the jury and nonsuited the plaintiff.

If this action had been to reform a deed for mistake or fraud, I should be strongly inclined to grant relief, but as the case stands I see no ground for granting a new trial.

Clearly the plaintiff has failed to show any legal title in himself, as the grantors to Deitz do not appear to have had any title to these lands, either legal or equitable.

Deitz, therefore, acquired no title which he could convey to Snyder. This being so, it is unnecessary to examine the alleged defect in the defendant’s title to these premises, as the rule is well settled that in actions of ejectment, the’plaintiff must recover upon the strength of his own title and not upon the weakness of the title of his adversary.

There seems to be another objection to the recovery of the plaintiff in this action upon the facts in the complaint and proof. The complaint shows that the defendant was at the time of the commencement of the action, and for eight years prior, thereto had been in possession, holding adversely to the plaintiff’s grantor. The plaintiff’s deeds bear date in 1890, and while the defendant was in possession as matter of law, as against the defendant, the plaintiff’s-deed was void for champerty.

We think the learned justice was right in nonsuiting the plaintiff-

The judgment must be affirmed, with costs.

Putnam and Herrick, JJ., concurred.

Judgment affirmed, with costs.


text:
    Jeremie Scripture, Respondent, v. Fannie E. Scripture, Appellant.

      Divorce — opening a judgment by clef milt — effect of the remarriage of the plaintiff.

    Where, after judgment has been rendered by default in favor of the plaintiff, in an action brought for an absolute divorce, on the ground of adultery, the plaintiff, with knowledge that an application is about to be made to open such default, remarries, the fact of such remarriage is not a good reason for denying the motion for a new trial if the circumstances connected with the default would otherwise justify the granting of such application.
    The circumstances connected with the absence of a material witness which wili justify the party, in whose favor he would be called, in neglecting to prepare for, or to appear upon the trial of an action, and will justify the opening of a judgment, by default,- of absolute divorce, considered by the court.

      Appeal by tbe defendant, Fannie E. Scripture, from an order of tbe Supreme Court, entered in tbe office of tbe clerk of Warren county on the 20th day of March, 1893, denying the defendant’s motion to vacate a judgment entered against her.

      Edwim, B. Leavitt, for the appellant.

      J. M. Whitman, for the respondent.
   Mayham, P. J.:

This was an action brought by the plaintiff against the defendant for an absolute divorce on the ground of adultery. The adultery charged in the complaint was alleged to have been committed in April, 1877, with Edward La Fay; also in December, 1886, with one T. Marshal Huntington; also charged the defendant with living in adulterous intercourse from March, 1886, to March, 1887, with said Huntington at 437 Fourth avenue, New York. The complaint also charged adulterous intercourse between the defendant and Henry Wygant on or about the 1st of January, 1889, also on or about the 1st of January, 1890, at 437 Fourth avenue, New York.

The defendant in her answer admitted her marriage, denying all the allegations of adultery charged in the complaint, and charged the plaintiff with adulterous intercourse with several females at several different times and places, specifically designating the time of each alleged adulterous intercourse.

The answer also set up cruel and inhuman treatment by the plaintiff of the defendant, and failure and neglect on his part to support the defendant.

The issue was joined upon the above complaint and answer November 14, 1891. On the 30th of May, 1892, the plaintiff noticed the cause for trial at a Circuit and Special Term appointed to be held at Caldwell on the 13th day of June, 1892. On the last-mentioned day the case was called upon the calendar, and on its being so called Stearns, of counsel for the defendant, appeared and moved an adjournment and read an affidavit of Edwin R. Leavitt, one of the attorneys for the defendant, showing, among other things, that on the 6th day of June, 1892, defendant’s attorneys wrote to Stearns of Glens Falls, requesting him to attend to the postponement of tlie trial, and informing him why the defendant would not be ready for trial at the Circuit on the thirteenth, and requesting bim to see the plaintiff’s attorneys and ask them to consent to an adjournment of the case.

The affidavits also show that defendant’s attorneys in New York, on the 10th of June, 1892, sent a telegram, to Stearns inquiring if he had received affidavits for adjournment and requested an answer, to which Stearns replied, “Yes.” In response to that, defendant’s attorneys informed Stearns by telegram “ they had sent papers.” On the 14th of June, 1892, defendant’s attorneys again telegraphed Stearns, in care of the clerk of the court, stating that they had forwarded affidavits of physician. The affidavit also disclosed that Dr. Huntington, one of the co-respondents charged in the complaint with having adulterous intercourse with the defendant, was absent and in Europe, where he had been for about two months, stating that he would not return in time to be a witness for defendant at the Caldwell Circuit, and that he was a necessary and material witness for the defendant on the trial of the action.

The affidavit also stated that the defendant was ill and unable to attend the court at which the case was noticed for trial, and that she was a necessary and material witness for the defendant. The counsel, in support of the motion to adjourn the case, also presented the affidavit of the plaintiff, setting forth her illness and inability to attend the Circuit at which the cause was noticed for trial; also the absence of Dr. Huntington and her inability to procure him as a witness; also the materiality of said Huntington as a witness on her behalf, as she was advised by her counsel, after stating what she expected to prove by him to her counsel, and that she could not safely proceed to the trial of the action without the testimony of Dr. Huntington; also the affidavit of Ebner Scripture, defendant’s son, who resided with her at the time in New York, stating the illness of his mother and her inability to attend the trial at the Circuit; also the certificate of Dr. Courcoula,. that he was the attending physician of the defendant, and that she was ill of rheumatism and unable to attend the Caldwell Circuit. This certificate was not sworn to, but its execution was acknowledged before a notary public. Counsel for the defendant also read an affidavit of Edwin R. Leavitt substantially reiterating the facts contained in the other affidavits and his inability to attend the Circuit in person on account of pressing professional engagements.

The affidavits of Dr. Courcoula, verified on the 14th of June, 1892, and fully setting out the illness of the defendant and her inability to attend at such trial, were forwarded to Stearns, but not received in time to be used on the motion to postpone. The plaintiff, on said motion to postpone, gave no evidence, but the motion was denied by the learned trial court, and on the 13th of June, 1892, the case was heard before a jury, no one appearing on the part of the defendant, and the jury, after hearing testimony and being charged by the court, returned into court with a verdict in favor of the plaintiff for a divorce.

.The stenographic report of the testimony on the trial was made a part of the moving papers on this motion, from which it appears that the plaintiff Scripture was sworn on his own behalf and swore that he was informed that his wife was guilty of adultery, and swore to having found a batch of letters purporting to have been written by T. E. Huntington, one of the co-respondents charged in the complaint. One of the letters was headed “ My Darling little wife.” The contents of these letters was escluded by the court. The witness was, however, permitted to swear that he had surrendered them to the defendant.

The answer of the defendant in this action was duly verified by her, and the affidavit upon which she ashed to postpone the trial of this action contained an affidavit of merits on the part of the defendant.

The affidavits of the defendant used on this motion positively denied the adulterous intercourse charged in the complaint, and alleged cruel and inhuman treatment by the plaintiff of her While they lived together as husband and wife; also the affidavit of the co-respondent, Edward La Eay, denies positively the adulterous intercourse charged in the complaint, and the circumstances tending to prove adultery, proved upon the trial by the testimony of Nathan Henry Stafford.

The affidavit of the defendant also denies the testimony of Stafford that she ever admitted La Eay was in her room with her alone.

The affidavits also offered on the part of the defendant on this motion, proved her character and conduct during all the túne of her residence in New York to have been exceptionally good, and also tend to prove cruel and inhuman treatment on the part of the plaintiff .towards her while they lived together as husband and wife at Glens Falls and Sandy Hill.

The affidavit of Dr. Huntington, read on this motion, denies all the allegations of adultery between him and the defendant in the complaint alleged, also denies proof that any letters were ever written by him or found in the possession of defendant as sworn to by the plaintiff on the trial.

The plaintiff offered in evidence the affidavits of several witnesses tending to prove his good moral character and character for truth. The case shows that on the trial of this action at the Circuit, after the default was taken, counsel for the defendant notified the counsel for the plaintiff that a motion would be made to open the default. It appears from the record that the judgment was entered on the 18th of June, 1892, and the affidavit of the plaintiff discloses that on the 2d day of July, 1892, the plaintiff was married to Abbie Hale of Norwood, St. Lawrence county.

I am clearly of the opinion that upon the facts disclosed on this motion, the defendant excused her default and unless the subsequent marriage of the plaintiff furnishes a reason why such default should not be opened the defendant should be permitted to try this case upon the merits. The evidence on this motion discloses that the defendant in her answer and in her affidavit to postpone the case swore to merits.

The evidence also shows on this motion, and the court cannot fail to see, that Dr. Huntington was a necessary and material witness for the defendant on the trial of this action, and that without his testimony she could not safely have proceeded to the trial, as she swore in her affidavit on the application to postpone the trial of the cause.

That being so, she had a right to assume that, as matter of legal justice, the trial would be postponed, and hence that she would not be required to prepare for trial in the absence of so material a witness whose testimony, as appears from the evidence on this motion, could subsequently, and within a reasonable time, have been procured. Nor do we think the announcement upon the trial that the plaintiff would not introduce evidence of the alleged adulterous intercourse with Huntington, put the case in such a position that the defendant should have been forced to trial. She had alleged recriminatory adulterous acts on the part of the plaintiff, and in her affidavit she swears that she expects to prove such aets by the testimony of Huntington. '

He was, therefore, necessary and material as a witness to prove her affirmative defense even though no evidence was offered of adulterous intercourse with him. Whether the defendant sought affirmative relief and asked for an affirmative decree dissolving the marriage on her part, was immaterial, as the adulterous intercourse charged in the answer, if proved, would have amounted to a good defense in this action. (Smith v. Smith, 4 Paige, 432.)

There was no evidence offered by the plaintiff on .the motion to postpone the trial calculated to impugn the good faith of the application to postpone, and the case as it was presented proved that the defendant was a necessary and material witness herself, was in such delicate health as to make her attendance upon the 'court at that time practically impossible, and that fact standing undisputed, with the additional fact of the materiality of the testimony of Huntington, and the defendant’s inability to procure his testimony, furnished a clear and unquestioned legal right on her part to have the trial of the case postponed. And the learned trial judge on this motion so holds, but the embarrassing question in this case grows out of the fact that the plaintiff, subsequent to the entry of this decree, intermarried with, what we must presume an innocent person, wholly ignorant of the facts upon which it is sought to open this decree and permit a trial of the issue in this case.

The haste with which the plaintiff married the second time involves these two women in this unfortunate complication, and the learned judge at the Circuit, and at the Special Term, when this motion was heard, held that in determining between these two innocent persons, the last wife was entitled to the protection of the court.

If, as we have seen from the proof on this motion, the defendant was entitled, as matter of right, to have her default opened, and to be permitted to try this action, that right existed at the time of the perfecting of this decree. That being so, no subsequent act of the plaintiff should deprive her of the benefit of that right.

The defendant’s attorney was notified of the decree on the 22d of June, 1892, and immediately on the twenty-third notified plaintiff’s attorney that he would move to open the decree, so that the plaintiff, through his attorney, was not ignorant of the fact at the time of his alleged marriage, of the defendant’s purpose to move to open the decree. With this knowledge and before the defendant had, under the circumstances in this case, a reasonable time to prepare and seiwe motion papers, the plaintiff, by an act for which the defendant is in no way responsible, enters into a second marriage, and now seeks to shield himself from a trial of this case by such marriage. If, as we think, and as seemed to have been held by the trial judge, this motion should have been granted but for that second marriage, we can see no good reason for depriving the defendant of that right by an act over which she had no control and for which she was in no way responsible.

The court of equity has exercised the power of opening a decree of divorce, and letting in the defendant to defend, in cases which would seem to appeal less strongly for such relief than in this case.

In Dunn v. Dunn (4 Paige, 425), where the parties resided in this State, but the defendant was temporarily absent in another State; where the subpoena was personally served upon her, to which she made no answer, and the bill was taken pro oonfesso, decree entered against her, and her husband entered into a second marriage, the court after such marriage set aside the default and allowed the defendant to come in and defend, allowing the decree to stand until the trial and determination of the issue between the plaintiff and defendant, and provided in the order that if the defense was sustained the decree should be set aside and the bill dismissed ; but if the defendant was beaten the decree- should stand in full force for the protection of the second wife. We think the rights of all the pax’ties in this action would be best subserved by making a similar order in this case. The order of the Special Term shoxxld be so modified as that the defendaxxt may be permitted to come in and defend in this action, on payment to the plaintiff of the term fee and witnesses’ fees for the term at which the decx-ee was taken and ten dollars ($10) costs of this motioxx, and the decree entered in this action to stand uxxtil the final determination of the action, and the subseqxxent marriage is so far -upheld as that the plaintiff’s cohabitation with the second wife, from the time of his marriage to her until the time of the determination in this action, shall not be treated as adulterous intercourse for the purpose of this action. Let an order be entered accordingly.

Putnam and Herrick, JJ., concurred.

Default opened on payment of term and witness’ fees and ten dollars costs. Judgment to stand until final determination of action.


text:
    The People of the State of New York, Appellant, v. Grand Lodge of the Empire Order of Mutual Aid of the State of New York. George W. Maxon, Receiver, Appellant in the Matter of Nickelson, Moses and Baade.

      Insurance corwpamy — dissolution of — intervention by a certificate holder in an action by the Attorney-General.

    Where there is pending against a temporary receiver of a mutual aid association (appointed in proceedings instituted for its voluntary dissolution) an action brought by a representative of a certificate holder thereof, to recover the amount payable upon the death of such member of the association, and an action is subsequently commenced in the name of The People by the Attorney-General, in which a judgment dissolving the corporation and appointing a receiver of its property, is duly entered, the plaintiff in the action brought against the temporary receiver should not be allowed to intervene and become a party to such action brought by The People, nor should a referee be specially appointed to take proof as to the claim of such plaintiff, where a referee has already been appointed by the judgment of dissolution, before whom all claims against such association can be proved.

      Semble, that the court has the power, in the exercise of a sound discretion, to allow a party to intervene in such an action, but that a clear and sufficient reason should appear before such intervention should be permitted.
    Appeal by the plaintiff, The People of the State of New York, and George W. Maxon, receiver, from an order of the Supreme Court, entered in the office of the clerk of the county of Saratoga on the 23d day of February, 1893, allowing the petitioners herein, George H. Nickelson, Lucy M. Nickelson and Cora E. Moses, represented by Attorneys Eellas &. Munsill, and Bertha Baade, represented by Attorney George S. Bixby, to intervene herein and become parties to this action.
    2. That all future notices and papers be served upon them as parties to this action.
    It was further ordered, that the claims of said petitioners be referred to Edward T. Brackett, Esq., of Saratoga Springs, to take proof of such claims; that such referee be directed to take proof touching the claim of these petitioners, that the receiver of the defendant herein has in possession funds specially devoted to the payment of these claims, or some portion thereof; the amount of such funds, the character of such funds, the sources from which they were derived and generally all facts touching such question involved in the claim of these petitioners; that such proof be taken before said referee upon notice to the respective parties herein, and the Attorney-General, and such other persons as may at the time of proof being so taken, have become parties to this action; that the Attorney-General or the receiver may bring such matter to a hearing before said referee upon like notice to counsel for said petitioners and other parties, if any, to the action; that said referee report the evidence so taken by him, and his findings thereon.

      Simon W. Posendale, Attorney-General, for the appellant.

      Charles W. Mead, for the receiver, George W. Maxon.

      John P. Eellas, for the respondents, George H. and Lucy M. Nickelson and Cora E. Moses.

      George S. Bixby, for Bertha Baade.
   Mayham, P. J.:

The defendant was incorporated under chapter 189 of the Laws of 1879, with power to make insurance and also to institute subordinate lodges subject to its direction and supervision. In September, 1886, Charles S. Nickelson became a member of the respondent corporation and received its certificate, which provided that in the event of his death the sum of $2,000 should be paid as provided in section 25 of the by-laws of the defendant, $1,000 of which by the terms of the certificate or policy, was made payable to his wife, Mary A. Nickel-son, two-thirds of the residue to his daughter Lucy M., and one-third of such residue to his son, George H. Nickelson.

The assured survived his wife and on the 18th of January, 1892, died, leaving him surviving George II. Nickelson, Lucy M. Nickel-son and Cora E. Moses his heirs and next of kin, who duly notified the grand lodge of the death of the assured and filed with the grand secretary at the proper office proof of such death, and thereafter the grand lodge assessed the members of the order in accordance with the by-laws, upon the death of Charles T. Nickelson and that of John F. Baade, a full-rate member of the order, who had died previous to such assessment, and on that assessment there was paid to the temporary receiver of the defendant the smn of $4,810.14, such receiver having been appointed on the application of the defendant in proceedings instituted by it for a voluntary dissolution of the corporation, after making such assessment pursuant to a resolution of its officers, on whose application a referee was appointed by the Special Term of this court, before whom it was ordered that cause could be shown, if any existed, why the defendant should not be dissolved.

After the appointment of such temporary receiver and the receipt by him of such money on this assessment, an order of the court was granted allowing an action to be commenced against the receiver upon the claim of the heirs and next of kin of Charles T. Nickel-son, deceased, for the amount of the policy issued to him, and an action was accordingly commenced against the defendant and such receiver about the 13th of October, 1892, in which the defendant appeared and obtained an extension of the time to answer, but did not sei've an answei\

On the 1st day of November, 1892, an action was comxnenced in the name of The People by the Attorney-Gexxeral on the coxnplaint of the Superintendent of the Insurance Department, and his report to tlxe Attorney-General that the liabilities of the defendant were $92,500, while its assets amounted to only about $15,000, as appears by the verified complaint of the Attox-ney-General in this action.

The defexxdant appeared by an attorney but failed to answer, and on the 26th of Novembex’, 1892, application was made for judgment at the. Special Term, and judgment was on the 29th of November, 1892, entered in Saratoga county, dissolving such corporation and appointing a receiver of the property of the defendant.

After the entry of judgment the petitioners on this motion served a notice of motion for the 10th of January for an order that they be relieved from all restraint imposed by this judgment, and that they be entitled to take proceedings to enforce payment to them of the sum mentioned in the certificate issued by the defendant to George H. Nickelson, deceased, and that the receiver be directed to pay the same to them, or that they be permitted to intervene.

This motion was granted, and The People, by the Attorney-General, appealed. It will be seen from an examination of the above facts and other facts in the case, that this corporation at the time of the commencement and prosecution of this action by the Attorney-General, was an insolvent corporation with liabilities far in excess of its assets, a fact conceded by the trustees and managers of the corporation, by the attempted voluntary dissolution, and that the action prosecuted by the Attorney-General was but the usual and legal method of dissolving an insolvent corporation and thus accomplishing the result sought in vain to be accomplished by the respondents.

In that action through the receiver all the assets of the corporation can be marshaled and all valid claims against the fund ascertained and determined by and before the referee who was appointed to take proof of claims against such corporation.

If, therefore, the heirs of Charles H. Nickelson who are petitioners to intervene in this action, were creditors of the corporation, their rights would be fully protected in this action, as they, with all other creditors, would be represented by the receiver, whose duty under the direction of the court, it would be, to apply the assets of the corporation to the payment of its debts.

But it is insisted by the petitioners that this fund in the hands of the receiver is in the nature of a special deposit or trust fund, and to the extent of $2,000 belongs to them, and to protect their interest in it, and secure its payment to them, it is necessary that they intervene in and become parties to this action.

The judgment in this action was entered on the 26th day of November, 1892, and by its terms seems to have provided for the closing up of the affairs of this corporation through the agency of the receiver with the aid of the court. The order from which this appeal was taken was entered on the 10th day of January, 1893, and if carried into effect would necessarily greatly hinder the expeditious and economical winding up of the affairs of the corporation. While it is true that the court has the power in the exercise of a sound discretion to allow a party to intervene, the rule seems well settled that in the exercise of that discretion a clear and sufficient reason should appear before such intervention should be permitted, and the exercise of that discretion has frequently been reviewed on appeal.

In The People v. The Globe Mutual Insurance Co. (27 Hun, 539), the order -of the Special Term allowing two claimants of funds in the hands of the receiver to intervene, was reversed by General Term of this department, and Learned, J., in delivering the opinion of the court, said: “ It is not necessary that they should intervene in order to establish their claim against the assets in the hands of the receiver. To secure such assets and to protect and apply the same to their legitimate use is the duty of the Attorney-General and the receiver. * * * Since then (the case of Attorney-General v. The North American Life Ins. Co. [77 N. Y. 297]), the desire to intervene for all causes and for no cause has become common, and the discretion of the court has been exercised in favor of such applications to the great prejudice of the due and proper administration of the law. Each intervenor has a right of appeal, and thereby may greatly delay proceedings.”

In view of that fact we think the danger of dissolution of the fund, against which the learned judge at Special Term perhaps justly objects, would be greatly aggravated rather than mitigated. In the case of The Attorney-General v. Continental Life Ins. Co. (90 N. Y. 45), policyholders were allowed to intervene, and upon an application for allowance to attorney, which came before the Court of Appeals, Finch, J., said: “ These were busy themselves and kept the courts busy, their positions changing during the exigencies of the struggle, sometimes fighting each other, now assailing the receiver, and then defending him, until the controversy became gravely involved and the fund seriously imperilled by the alleged effort to defend and increase it.”

It can hardly be maintained that intervention in this case was necessary or proper to guard the fund against the exaction of the Attorney-General’s office in costs, especially as that officer is required by law to report to the Comptroller and Legislature all costs adjudged to the People, and costs recovered by the Attorney-General, and the manner in which he has expended or applied the same. (Chap. 643, Laws of 1873; §§ 53, 56, chap. 683, Laws of 1892.)

Nor do we think intervention necessary on the part of the petitioners to guard their interest against any act of the receiver.

He is an officer of the court, and acts under its direction, and is answerable to its summary action to prevent any abuse or perversion of his power or authority.

As has been seen, an order was made in this action appointing a referee before whom claims against this corporation can be' proved, and it also appears from the case that another referee was appointed on this motion to take proof of the claim of the petitioners to the fund in the hands of the receiver.

We see no necessity for this while the reference and the judgment to take proof of claims stands.

All the facts which could be proved before the referee appointed by this order can be proved before the referee appointed under' the judgment, and while we believe that either of the gentlemen appointed as referee to take proof of claims is worthy of the fullest confidence, we can see no good reason for suspending the former by the appointment of the latter; nor do we see any necessity for two referees for the performance of substantially the same duty.

On the whole, we think, the order appealed from should be reversed.

The order must be reversed, with ten dollars costs and printing disbursements.

Putnam and Herrick, JX, concurred.

Order reversed, with ten dollars costs and printing disbursements.


author: Herrick, J.: Mayham, P. J.

text:
    Ann E. Smith, Respondent, v. Mark T. Ferris, Appellant, Impleaded with Michael Varley, Sarah M. McKinstry and Jeremiah McKinstry.

      Partial guaranty of a mortgage — obligation discharged by the payment by an insurcmee company of a loss by fire on the mortgaged premises.

    It is only where the language of a guaranty is indefinite and uncertain and the meaning ambiguous, that resort can be had to “surrounding circumstances,” or an effort will be made to ascertain the intention of the parties in order to discover the meaning of the words used.
    An instrument by which the party guarantees “ the payment of the within mortgage according to its terms, until the same is reduced to three thousand dollars,” ceases to be obligatory upon the part of the guarantor when the mortgage, which originally secured the payment of the principal sum of $4,000, is, by reason of the occurrence of a fire in the mortgaged premises, reduced by the payment of the loss under insurance policies held as collateral to the mortgage to a sum below §3,000. (Mayham, P. J., dissenting.)
    The argument that it was not the intention of the parties to include payments made on account of insurance upon the premises, because if the property was destroyed by fire the value would be thereby reduced and the security correspondingly lessened to the extent of the amount received from such insurance, will not be considered.
    Appeal by tbe defendant, Mark T. Ferris, from a judgment of tbe Supreme Court, entered in tbe office of tbe clerk of the connty of Saratoga on tbe 22d day of November, 1892, adjudging and directing a sale of mortgaged premises, and that any deficiency arising upon such sale be paid by tbe defendant, Mark T. Ferris, in accordance with tbe terms of bis guaranty, which is set forth in tbe following opinion.
    Tbe action was tried at tbe Saratoga Special Term before tbe court, upon tbe decision of which the judgment was entered.

      I). E. Wing and I. B. Pike, for the appellant.

      Maxon <£t Wiswáll and J. L. Eerming, for the respondent.
   Herrick, J.:

Tbe defendant Mark T. Ferris appeals from a judgment entered against him upon a foreclosure of a bond and mortgage. Ferris was tbe owner of a bond and mortgage executed by the defendant Yarley to secure the payment of the sum of $4,000, conditioned to pay the interest, and $100 of the principal, on the first day of April of each and every year, until the whole amount was paid. The mortgage also contained the stipulation that the party of the first part was to have the buildings insured in the sum of $1,000 for the benefit of the party of the second part. Ferris sold and assigned the bond and mortgage, and at the time of the sale and assignment executed upon the face of the mortgage a guaranty in the following language: “ I hereby guarantee the payment of the within mortgage, according to its terms, until the same is reduced to three thousand dollars.”

Subsequent to the assignment the buildings upon the premises were destroyed by fire.

The plaintiff realized from the insurance the sum of $1,434, which was applied as follows: $1,200 upon the principal and $234 upon the interest, which paid the interest up to April 1, 1890, leaving for the principal $2,700, with interest from April 1, 1890.

A default having been made in the payments of interest and one of the installments of the principal, this .action was commenced for the foreclosure of the mortgage, and judgment was rendered against all the defendants, and against the defendant Ferris, which in substance renders him liable for any deficiency that shall arise upon the sale of the mortgaged premises.

The court held as a conclusion of law that the defendant Ferris “was not discharged by the payment of $1,434 on April 1, 1890.” The appellant Ferris claims that the reduction of the amount of the mortgage to the sum of $2,700, by the payment of the insurance, relieves him from his guaranty, the mortgage thereby being reduced below $3,000. Contracts of guaranty are subject to similar rules of interpretation as other contracts, but they should not be extended by construction beyond the plain and explicit language used in the contract. (The People v. Lee. 104 N. Y. 441-449; McCluskey v. Cromwell, 11 id. 593.)

The liability of the guarantor is not to be extended by construction. (McCluskey v. Cromwell, 11 N. Y. 598.)

Where the language is plain and unambiguous, there is no room for construction or interpretation; that meaning must be given to it that its language imports, without taking into consideration sur» rounding circumstances or possible intentions of tbe parties; the intent is to be sought in such cases in the plain meaning of the words used. It is only where the language is indefinite and uncertain and the meaning ambiguous that resort is had to surrounding circumstances, or an effort is made to ascertain the intention of the parties in order to assist us in discovering the meaning of the words used ; in this case the words are plain and certain, “ I hereby guarantee the payment of the within mortgage, according to its terms, until the same is reduced to three thousand dollars.” The terms of the mortgage are, the annual payment of $100 upon the principal, and that the property shall be insured for the benefit of the holder of the mortgage in the sum of $1,000, which means that the insurance to that amount shall be paid upon the mortgage in the event of the mortgaged property being destroyed by fire.

The terms of the guaranty have been complied with, the mortgage has been reduced by payments made in accordance with its terms to the sum of $2,700.

Ingenious arguments are used to show that it was not the intention of the parties to include payments made of the insurance money, because if the property insured was destroyed by fire, the property would pay the mortgage to that extent, and the security would be reduced and the guaranty be of no benefit, and that such a construction would not be beneficial to the assignee of the mortgage.

Whatever was the intention of the parties in that respect, they did not embody it in the contract; if it was the intent to exclude the payments made by the insurance money, they should have mentioned it; as it is, such a payment is just as much in accordance-with the terms and conditions of the mortgage as the annual payment of the $100 therein provided for.

Courts cannot make contracts, and cannot inject into them provisions which the parties omitted to insert themselves.

Courts can only enforce contracts that the parties have made, and can only interpret those contracts from the language used, unless it is susceptible of more than one interpretation, or its meaning is doubtful. In this instance, it seems to me, the tefms are plain and unambiguous; that the mortgage has been reduced to $3,000, and that the defendant Ferris is not hable upon his guaranty, and that, as to him. the judgment appealed from should be reversed, with costs.

Putnam, J., concurred.

Mayham, P. J.

(dissenting):

The defendant Michael J. Varley executed his bond to one Frank Ferris, dated January 16, 1886, conditioned for the payment of the sum of $4,000, at the terms and in the manner therein specified, and as collateral to such obligation executed to the same Ferris his mortgage on certain real estate, which mortgage contained an insurance clause, conditioned that the buildings should be kept insured against loss or damage by fire to the amount of $1,000, for the benefit of the mortgagee.

The bond and mortgage were duly assigned by Frank Ferris, the mortgagee, to Mark T. Ferris, April 1, 1887, who on the 27th day of April, 1888, duly assigned it to the plaintiff and at the time of making such assignment guaranteed the mortgage in the following words:

“ I hereby guarantee the payment of the within mortgage according to its terms, until the same is reduced to three thousand dollars.
“MARK T. FERRIS.”

The interest was paid on this mortgage up to April 1, 1889, and on the 1st of April, 1890, the following indorsement was made on the bond:

“ April 1st, 1890. Received on the within, $1,434, being $1,200 of principal and $234 interest to date, leaving a balance due of $2,700, with interest from date.”

The case shows that, before the commencement of this action, the building insured on the mortgaged premises was destroyed by fire, and the insurance of $1,000 applied in part payment of the mortgage, and that at the time of the commencement of the action the amount remaining unpaid upon the mortgage was $2,700. The trial judge held in effect that the application of the insurance money on the mortgage did not reduce the amount of the same to $3,000, within the terms of the guaranty, or its legal effect, and gave judgment against the appellant upon the guaranty. From that determination the guarantor appeals.

On an examination of the facts we think the trial judge' was correct in his conclusion and that the judgment should be affirmed on his opinion, with costs.

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


author: Per Curiam :

text:
    Peter J. Soderman, Respondent, v. The Troy Steel and Iron Company, Appellant.

      Master and servant — negligence —measure of damages.

    In an action to recover for injuries sustained by an employee in good health, fifty-six years old, and earning at the time of the accident about two dollars per day, where the injury is of a permanent character and the employee is rendered practically unable to perform manual work, a verdict for $1,000 against his employer, through whose alleged negligence the accident resulting in this • injury occurred, is not excessive.
    Where, in an action to recover damages resulting from an injury caused by the alleged negligence of an employer in furnishing a defective dump car, the evidence tends to show that the car became so far defective, by reason of certain hooks attached to a cross bar used in dumping the contents, of the car having become straightened, so as to set the car box moving laterally and thereby to cause it to dump its contents while the train was in motion, the question of negligence on the part of the employer should be submitted to the jury.
    Appeal by the defendant, the Troy Steel and Iron Company, from a judgment of the Supreme Court entered in the office of the clerk of the county of Rensselaer on the 22d day of November, 1892, upon the verdict of a jury in favor of the plaintiff for $1,000, rendered at the Rensselaér County Circuit after a trial before the court and a jury; and also from an order entered in said clerk’s office, denying the defendant’s motion made upon the judge’s minutes to set aside the verdict, and for a new trial.
    The action was prosecuted to recover damages for injuries sustained by the plaintiff by reason of the alleged negligence of the defendant in furnishing an alleged defective car, upon which the plaintiff was employed to work in transporting slag from defendant’s steel works to a dump on defendant’s ground where such slag was deposited.

      The plaintiff was a common laborer and had been in the employ of the defendant as such for about ten years, and appears to have been subject to the orders and directions of one Babcock, who was boss laborer on defendant’s works.
    On the 28th of August, 1888, the plaintiff with other employees of the defendant, loaded several cars with this refuse material and ran one train without accident to the dump, discharged the load and backed up to the pit at defendant’s furnace, reloaded their train and started again for the dump.
    The train was run at about the rate of three or four miles an hour. Before reaching the dump the body of the car on which plaintiff was seated, without any interference by any of the employees, became unhooked from the truck, and dumped its contents, carrying the plaintiff with it, who fell under the loading of the car and was injured.
    The car on which the plaintiff was employed was so constructed that the body rested upon the truck and was attached to a center shaft running lengthwise of the box so that the shaft could be moved by a crank at one end.
    This shaft was attached to two rollers or wheels, one at each end, about six inches in diameter, which supported the box and aided in XQpving it. The rollers rested on cross bars running across the car on the truck. On this shaft at its central part under the car is a pinion or small notched wheel. This pinion is so placed as to engage with the rack, which is a flat strip of iron with teeth projecting above it, running transversely across the frame which supported the car box.
    "When this shaft, which is moved by a crank turned by hand, is set in motion, the teeth of the pinion engaged with the toothed surface of the rack and the box by the aid of the rollers is moved laterally until its center of gravity gets beyond the support, when the box dumps.
    There are also two chains connected on the car box with the truck, which prevent the box from passing beyond the point necessary to dump its load. The mode of fastening the car box to the truck is by means of two hooks which are attached to the cross bar, which is immovably fixed to the truck upon the side of the truck opposite to that from which the car dumps. "When the car box is in place, the two hooks attached to this cross bar are hooked over the central shaft. These hooks are fixed by the operatives, and designed to fasten the box in its place.
    If the hooks are not adjusted or placed upon the shaft, the box becomes insecure, and the jar incident to the moving of the train would be -sufficient to set the car box moving laterally, and cause the dump. The evidence discloses that it was in consequence of these hooks becoming detached that the car box slid laterally as the train was moving, and thus caused the accident. The contention on the part of the plaintiff is that this apparatus was insecure, and that the construction of the car was in this regard generically defective.
    There is some evidence in the case on the part of the plaintiff tending to show that one of these hooks had been slightly straightened, and thus rendering it less secure than it would have been if the hook had been as originally intended.
    While the witnesses on the part of the plaintiff and defendant all agree as to the general construction of this car, there is a marked difference in their testimony as to whether or not it was the best or most approved method of constructing cars for the purpose for which these cars were used, and there is some evidence tending to show that the defendants at this time were using cars for this purpose of a different construction.
    The controversy in this case turns largely upon the sufficiency of this method of construction of cars and the condition of this particular car as to the hook which was intended to hold the body in place.
    The theory of the plaintiff was that this accident occurred by reason of the defect in the car, while the contention of the defendant is that the accident resulted from some negligence on the part of plaintiff’s co-employees in not adjusting the hook before the starting of the train, and this difference was sharply contested by the evidence on either side.

      P. A. Parmenter, for the appellant.

      James Pansing, for the respondent.
   Per Curiam :

The principal question in this case was whether this car was such a reasonably safe car for the plaintiff to work upon as the employer is required to furnish for the use of its employee. This question, as this case was tried, was one of fact under the evidence, which the jury were called upon to decide, and as the evidence was conflicting, it became their duty to settle that controversy, and there being sufficient evidence in support of the plaintiff’s theory to uphold the verdict, this court should not interfere with their determination, unless there is something in the amount of the verdict calculated to show that the jury were influenced by prejudice or passion.

It is urged on the part of the defendant that the verdict was excessive, and the defendant moved to set it aside on that ground, on the trial. We do not think the refusal of the learned trial judge to set aside the verdict as excessive, was erroneous.

The plaintiff was a man in good health, about fifty-six years old, and was earning, at the time of the accident, about two, dollars per day.

The evidence discloses that the injury is of a permanent character, and that the plaintiff, by reason of it, is rendered practically unable to perform manual labor.

Upon the evidence, assuming that the jury were right in finding that the injury was the result of defendant’s negligence, we cannot see that the verdict of $1,000 was excessive. There were some exceptions taken by the defendant to the ruling of the judge in the reception and rejection of evidence taken upon the trial, and to the judge’s charge to the jury.

We have examined these exceptions and see no error committed by the learned judge for which this judgment should be reversed.

Present — Mayham, P. J., Putnam and Herrick, JJ.

Judgment affirmed, with costs.


text:
    Carrie A. Racine, as Administratrix of Samuel L. Racine, Deceased, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.

      Master and servant — negligence — safe machinery.

    An employer is "bound to furnish not only a reasonably safe place for his employees to work in, but he must use reasonable care in keeping such place free from unnecessary peril.
    This rule does not make the employer an insurer against injury to his employees, caused by the breaking of machinery or the explosion of a boiler while in use by the employee in the. service of the employer, provided such machinery is apparently in a safe condition and the injury results from a latent weakness or a defect unknown to the employer, and one which the exercise of ordinary care and skill by the employer would not enable him to detect or guard against; an accident happening under such circumstances must be regarded as one of the risks incident to the employment which the employee assumes.
    In an action to recover the damages resulting to an employee from the explosion of a boiler on one of the defendant’s locomotive engines, it appeared upon the trial of the action that the injury was caused by an explosion of the crown sheet of the boiler, which, about a week before the accident, being uncovered by the water, was discovered by the engineer to be white, and at his suggestion , a careful examination was made of it, but no weakness in the boiler could be discovered. After this the boiler was subjected to the test of 145 pounds pressure, its maximum capacity, and resisted that pressure; but subsequently, under a pressure of only 110 pounds, while the engine was running at a moderate rate of speed, the boiler exploded.

      Held, that there was not sufficient evidence to go to the jury upon the question of the defendant’s negligence in the premises.
    Appeal by tlie plaintiff, Carrie A. Racine, as administratrix of tbe goods, etc., of Samuel L. Racine, deceased, from a judgment of tbe Supreme Court entered in tbe office of tbe clerk of St. Lawrence county on the 6th day of March, 1893, after a trial at tbe St. Lawrence County Circuit, at which the plaintiff was nonsuited and the complaint dismissed, and the court refused to submit the case to the jury.

      OJia/mberlain do Oal&well, for the appellant.
    Mktllin, Griffin do Walker, for the respondent.
   Mayham, P. J.:

The plaintiff’s intestate was killed while in the employ of the defendant, by the explosion of a boiler on one of the defendant’s locomotive engines, and the only question raised on this appeal is, whether the trial judge should have submitted to the jury the question as to whether or not the defendant was negligent in furnishing an unsafe place for the plaintiff’s intestate to perform his work.

The injury occurred by an explosion of the crown sheet of the boiler, and there was some evidence that about one week before the explosion which caused the injury, the water in the boiler had been lowered so that the crown sheet was not covered, and that the engineer discovered that the plate appeared white, and the attention of the master mechanic was called to it, and, after some examination of the boiler by experienced engineers and by a boiler maker, who discovered no evidence of injury or weakness to the boiler, she was kept at work.

The evidence shows that the maximum capacity of the boiler' to resist the pressure of steam was between 140 and 145 pounds, before she would exhaust steam, or pop off, as the witness called it, automatically by forcing open the safety valve on the engine, and the evidence shows that frequently, after the alleged burning of the crown plate, she carried her full amount of steam, and popped off regularly when the maximum pressure was reached.

The evidence also disclosed that she was used, from the time of The supposed burning of the plate to the time of the explosion, in hauling freight trains over the road, and showed no signs of weakness or leaking, and that on the day of the accident she had hauled a freight train from Watertown to Sanford’s Corners, where she was transferred to a passenger train which she hauled to Philadelphia, whence she started back without a train, to be again attached to the freight which she had left, and, while carrying but 110 pounds of steam and running at the rate of ten miles an hour, she exploded and caused the injury complained of.

We think that upon these facts the plaintiff failed to establish affirmatively any negligence on the part of the defendant in not providing a reasonably safe place for the plaintiff’s intestate to work.

The doctrine is doubtless well settled by authority that the defendant is bound not only to furnish a reasonably safe place for its employees to work, but it must use reasonable care in keeping such place free from unnecessary peril. (Hawley v. Northern Central R. R. Co., 82 N. Y. 370; Mehan v. Syracuse, Binghamton & N. Y. R. R. Co., 73 id. 585.)

But this rule does not go to the length of making the employer insurer against injury by the breaking of machinery or the explosion of boilers while used by an employee in the service of the employer, provided such machinery is apparently in a safe condition and injury results from latent weakness or defect unknown to the employer, and which the exercise of ordinary care and skill by the employer would not enable him to detect or guard against, and when an accident happens under such circumstances, it must be regarded as one of the risks incident to the employment, which, when no fault is chargeable to the employer, the employee assumes.

The boiler in this case, after the supposed burning of the crown plate, was subjected to the test of 145 pounds pressure, its maximum capacity, and resisted that pressure, and upon that test was put in service by the defendant, in hauling freight and passenger trains, under a pressure, as would seem from the evidence, of from 140 to 145 pounds of steam, and continued in such service for about one week after such supposed burning of the plate, to the time of the accident, without any evidence of weakness. It finally exploded while carrying only 110 pounds of steam and while running at a moderate rate of speed alone, and without a train. We fail to see from the evidence either that the place furnished by the defendant for the intestate to work was unsafe, or that the defendant was guilty of negligence in suffering it to become unsafe while the intestate was employed by the defendant. We think, under the proof in this case if it had been submitted to the jury, and' a verdict had been rendered in favor of the plaintiff, it would have been the duty of the trial judge to have set it aside upon the minutes.

In such a case it is the duty of the judge to nonsuit, and we think, therefore, that the nonsuit was properly granted in this case.

The judgment should be affirmed, with costs.

Putnam and Herrick, JJ., concurred.

Judgment affirmed, with costs.